Naming Partners Not Required

Court rules that closeted husband’s past partners can remain secret

A California appeals court on August 23 ruled that a closeted gay man being sued for transmitting HIV to his wife may not be compelled to disclose the identities of the men with whom he had sex. The opinion, written by Judge Madeline Flier, dealt with a series of pre-trial “discovery” requests by the wife, the defendant in a counter-suit by the husband, who alleges that she infected him with HIV.

The parties in the case are identified in court papers only as John B. and Bridget B. According to Bridget’s complaint, she and John first met in 1998 and married in July 2000. Bridget claimed that prior to their marriage John requested that they stop using condoms, but that the last time they had sex was during their honeymoon. Bridget alleged that John told her before their marriage about prior relationships with women, but had never disclosed any sexual activity with men.

According to Bridget’s complaint, sometime shortly before the marriage, she received a phone call from somebody claiming to be from a doctor’s office, who asked her to tell John that his HIV test results were negative. In October 2000, Bridget experienced exhaustion and high fevers, went to a doctor, and tested positive for HIV. The doctor, who claimed to be an HIV/AIDS expert, told her that she had brought HIV into the marriage. She promptly informed John, who immediately began taking medications. The so-called expert doctor told Bridget that her infection was long-standing and not treatable.

Bridget claimed that in September 2001, John began to tell other people that Bridget was infected prior to their marriage and passed it on to him. A month later, he developed severe AIDS symptoms and, in December, confessed to Bridget that he had sex with men before their marriage. In February 2002, a hospice worker whose care Bridget was under told her that it was unlikely John contracted HIV from her, given how advanced his AIDS was.

Bridget filed a lawsuit against John, asserting claims of intentional and negligent infliction of emotional distress, fraud and negligent failure to disclose that he was HIV-positive before engaging in unprotected sex with her. John filed a counter-claim, asserting that Bridget had infected him.

Bridget’s attorney, during discovery, sought a lot of information from John, including a complete list, with phone numbers and HIV status, of all the men with whom John had “unprotected sex” prior to meeting his wife. Her attorney also tried to have John admit that he had engaged in a “lifestyle” that made him susceptible to HIV infection, and that he knew he was infected and had AIDS before he engaged in unprotected sex with Bridget. The attorney attempted to subpoena John’s medical and employment records.

The trial judge, Lawrence W. Crispo, rejected all of the objections to these discovery demands made by John’s lawyer, ordering John to submit to questioning and provide the information.

On appeal, the court agreed with John to a significant extent, finding that the right of sexual privacy under both federal and California constitutional law placed limits on the kind of information that could be requested during discovery, including the identity of past sexual partners.

Bridget claimed that she needed to discover the identity of past sexual partners so they could be contacted and asked whether John had discussed his HIV status with them. Flier found this to be unduly speculative and improbable in light of Bridget’s allegations.

“Bridget offers nothing to support the suggestion that John may have disclosed his condition at an undisclosed time to an undisclosed person,” she wrote. “Moreover, Bridget’s demand for the disclosure of the identities of John’s previous sexual partners is extremely broad and unlimited.”

Flier agreed with the trial court that many of Bridget’s questions were relevant, when directed to John’s prior experiences, health care and state of knowledge, and so he would have to answer questions pertaining to when he might have contracted HIV. John had argued that there is no “established body” of research showing a high rate of transmission of HIV during ordinary sexual intercourse, so there was no basis to impose any duty on somebody to disclose his sexual history to a new partner, but the court said this argument was not relevant at the discovery stage, since John could later argue at trial that any such evidence cannot be introduced.

However, the court agreed with John that requiring him to answer questions about “lifestyle” was out of bounds.

“The word ‘lifestyle’ is vague and ambiguous,” Flier asserted. “To the extent that it suggests a sexual orientation, it is offensive and impermissibly intrusive into John’s zone of sexual privacy.”

But the court rejected John’s argument that his medical and employment records need not be disclosed during discovery. Since he had put the issue of his HIV status squarely into play by counter-suing Bridget, Flier found that he had waived any confidentiality claim he might have with respect to his medical records.

The case was sent back to the trial court, which was directed to proceed in line with the court of appeals decision.

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