CA Supreme Court: Do You Have to Tell Your Spouse Everything?
The California Supreme Court will sift through the ruins of the marriage of an AIDS-infected couple today to decide what information partners must tell one another about past high-risk sexual activity.
At a hearing in Los Angeles, the court will look into the legal consequences of a woman's claim that her husband -- a healthy person, by all outward appearances and his own assurances -- infected her with HIV.
Her lawsuit, in which she is seeking damages, raised issues that require the justices to weigh health concerns against the right of sexual privacy a quarter century into the AIDS epidemic.
One question the court will address is how much one spouse, or unmarried partner, is entitled to know about the other's sexual past as a safeguard against infection. Another is whether a partner who was unaware of his condition can be held responsible for infecting his mate if his past practices or health condition should have given him cause for concern.
The case has given rise to some unusually blunt language in written arguments to the court. In particular, a lawyer for the wife, identified only as Bridget B., minced no words in arguing that she should have been told about her husband's past sexual contacts with men before she "decided to risk her life by having unprotected sex'' with him. ...
In response, lawyers for her former husband, John B., said requiring an infected partner to disclose details of his sexual past would intrude on his privacy -- and the privacy of his former partners -- without providing any meaningful health protection.
In light of sex education programs and public health campaigns for more than three decades, "the public at large is already on notice of the risks of unprotected sex,'' attorney Eric Multhaup said.
For one thing, the fact that he had sex with men does not somehow ensure that he was HIV+. If she wanted to know his sexual past, which I would argue she shouldn't have any legal right to, why just male partners?
I feel bad for Bridget B., but I get really tired of this assumption that simply being married means one should be protected from HIV by some special matrimonial immunity. People are so bought-and-sold on the Magic of Marriage that they award it magical powers and ridiculous expectations: like all married people tell their spouses the truth, the whole truth, and nothing but the truth all the time.
I think that, if you are concerned that you might contract HIV, you should use a condom. You should ask your partner if you can see the results of their test. If they say no, you can take the situation under advisement and decide whether or not you wish to continue (or start) sexual activity with that person.
Obviously, if John B. did, in fact, know his status, he should have let her know. He shouldn't be required to by law, but that's the right thing to do. The law is not a set of ethical suggestions.
See: you never know when I'm going to get all libertarian on you.