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LOS ANGELES � A word of advice to anyone with a sexually transmitted disease: Warn any prospective sex partner or face the consequences. On Tuesday, in a case that could have major implications for sexual privacy and, in particular, tens of thousands of people with HIV, the California Supreme Court seemed ready to impose liability on those who actually know � or should have some idea � that they have a sexually transmitted illness, but fail to tell their sex partner. “Is it that burdensome of an obligation to warn a partner?” Justice Marvin Baxter asked attorneys arguing the case. “That partner would then have a choice of taking that risk or not taking that risk.” At least three of the seven justices seemed to agree. The underlying suit was filed in Los Angeles County Superior Court by a woman identified only as Bridget B. against her husband, named only as John B., who she claimed infected her with HIV soon after they married in July 2000. The facts alleged in the case are odd because Bridget tested HIV positive four months after she discovered by accident that her husband had tested negative. Less than a year later, according to the complaint, John had developed full-blown AIDS and Bridget learned that before and during their marriage he had engaged in unprotected sex with several gay men. Bridget then concluded that John had infected her. She sued for fraud and negligent infliction of emotional distress, claiming John knew or should have known that he had HIV, and she sought discovery into John’s sexual history. For most of the justices on Tuesday, the question seemed not so much that a warning was due, but at what point John or any other person with a sexually transmitted disease should be required to warn. Should it occur when symptoms manifest, they queried, or go beyond that point? For one thing, they noted, the symptoms of HIV develop slowly over time, and an infected individual might not know he or she is contagious. For another, they wondered whether a person’s sexual history � particularly if he or she has been promiscuous � should be taken into account. Justice Carol Corrigan noted that a prospective sex partner informed that an individual had HIV or had bedded a person with the disease would at least be aware he or she faces an increased risk of infection. “Is that not true?” Chief Justice Ronald George noted that someone who knew about a partner’s past sexual behavior would have “constructive knowledge” of the risk he or she faced. In response, Mill Valley solo practitioner Eric Multhaup, who represents John B., said that no California court has made that the rule. “We’d be charting new territory if we went down that road,” he said. At one point, George seemed frustrated by Multhaup’s responses that disclosure wouldn’t accomplish much. “But what’s the burden?” George asked. “Here we’re just talking about exchanging a few words.” Multhaup answered by saying those few words could lead to other questions � such as who the infected person slept with, where and how many times � that tread on the right to sexual privacy. Justice Kathryn Mickle Werdegar, whose husband once headed up the San Francisco Department of Public Health, followed up that thought in questioning Bridget B.’s attorney, Roland Wrinkle, a partner in Woodland Hills’ Grassini & Wrinkle. “Is the next question, ‘Who are they?’ and ‘What is their health status?’” she asked. And if so, she added, “what have you learned?” “Nothing,” Wrinkle responded. “Exactly,” Werdegar said. Chief Justice George also seemed to believe that marriage increased a couple’s duties to each other. “It is a factor that there is a marriage here, isn’t it?” he asked Wrinkle. “I mean, there is more of a duty than, say, in a one-night stand.” George also touched on domestic partnerships by wondering whether anyone in any kind of long-term, committed relationship owed a heftier duty of care. Justice Joyce Kennard appeared concerned that the court was headed toward creating a new law of negligent transmission based on a case that was only in the discovery stages. Neither side, she noted, has “tested the sufficiency of the pleadings in the trial court.” “Is it proper for this court to create a brand-new tort based on a discovery issue?” she asked. The other justices didn’t seem to share Kennard’s concerns, with Justice Ming Chin going so far as to insinuate that if the court doesn’t impose liability for negligent transmission, it might be encouraging “willful ignorance” with people simply not testing for HIV. On a side note, the state Legislature in 1998 passed a law making it a felony, punishable by three to eight years in prison, for intentionally infecting someone with HIV. A ruling in John B. v. Superior Court ( Bridget B.), S128248, is expected within 90 days.

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