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Abstract

AIDS is a modern epidemic that has grabbed the forefront of this nation's attention like no other disease in the twentieth century. Despite vigorous medical research and experimentation, the disease remains incurable and ultimately fatal. Protecting the health of the citizens has always been a strong policy of the law. Tort liability for the spread of contagious diseases dates back to the early nineteenth century. Tort liability for sexual transmission of AIDS began to appear in the late 1980s, not long after the appearance of the disease. Based as it was on the tort actions arising from other transmittable diseases, tort liability invariably required a showing that the defendant knew that he or she was infected with the disease before the sexual contact took place. AIDS is unlike other sexually transmitted diseases. It is stealthy, with a lengthy and symptom-free incubation period which may last for a decade or more. During this time, the infected individual could infect any number of persons, limited only by the number of sexual partners the infected party is able to contact. Although having sex with an HIV-infected individual does not guarantee that one will contract the virus, it is certainly a foreseeable consequence of such conduct. Under the current standards of tort liability, HIV-infected individuals will almost always plead a lack of knowledge defense. Unless the standards of when it is reasonable for a person to have constructive knowledge of his or her HIV infection are extended to persons who, for a variety of reasons, should have known that they were HIV-positive or at great risk to be HIV-positive, a plaintiff may not be able to successfully bring an action in tort. Tort law is intended to apportion responsibility to those who have committed a wrong. It goes against the great weight of tort law to allow HIV-infected individuals to escape tort liability due to the particular nature of this contagious disease. Persons who are infected with HIV or who, because of particular information known to them know that they are at high-risk for being infected with HIV, owe a duty to all future sexual partners to either disclose their serostatus, or to warn of the possible risk. Failing that, these individuals have a duty to abstain from sexual contact with unsuspecting partners until the partners have been informed. After disclosure, if a partner chooses to engage in sexual contact with the infected or at-risk individual, then that person has made an informed choice. If that party attempts a tort action later, arising from HIV-infection, then the defendant may raise a comparative or contributory negligence defense, or assumption of risk defense, depending on the jurisdiction. The risk of HIV infection and the consequences of the spread of this disease are just now becoming apparent eighteen years after the appearance of the disease. In the United States alone, the Center for Disease Control reported that 390,692 persons had died of AIDS as of December 1997. Another 665,397 Americans were living with AIDS as of June 30, 1998. Outside of the United States, the statistics are far worse. By extending tort liability to persons who should know that they are HIV-positive or to those who know that they are at high-risk for HIV infection, two purposes can be met. First, individuals who contract HIV through sexual contact may have legal remedies against the partners who infected them. The liability in these cases will be restricted to persons who had a duty to warn the plaintiff of the risk of HIV infection, but failed to do so. This liability will serve as an incentive to disclose one's conditions and risk factors to one's future sexual partners, thus probably limiting the spread of the disease. Second, extending tort liability will encourage HIV testing; more testing will foster improved treatment of HIV and further limit its spread through sexual transmission. This Comment focuses on the causes of action arising from the sexual transmission of AIDS.

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