Dear Mrs Macaulay,

I recently dated a man, and over the course of knowing him we spoke about sexually transmitted disease (STD) testing. He told me he had tested and all was well. I begged him to use a condom and he would not comply. Months later I got tested and learnt I had contracted the herpes virus, chlamydia, and three other low-grade infections.

I told him and he responded with silence and even sent me video recordings of how I could treat the virus. He does not deny or even try to blame me.

The overall testing and medication cost me roughly $50,000 and I will have to repeat in three months. In addition, the emotional stress is almost unbearable.

My questions are:

1. Can I sue him for infecting me?

2. Can I sue for emotional distress?

3. Can I sue for medical expenses past and present?

Thank you for your response.

I am deeply concerned that you have found yourself infected, especially after you had spoken with your ex boyfriend about testing. Clearly, he misled you, and in addition, refused to use condoms even though you begged him to do so.

I must deal frankly with his assurance to you that he had been tested, which led you to believe that he was healthy. But you did not know that he had been tested, you just took his word for it. The fact that you begged him to use condoms says to me that you did not know whether to fully accept what he had told you, and that you felt that you did not have the power to demand condom use. When he refused, instead of telling him no, you chose to stay and be intimate with him.

There are no clear statutory laws in Jamaica about having sexual intercourse knowing you are infected with sexually transmitted diseases, and intentionally or recklessly infecting your partner, except for section 5(3)(e) of the Sexual Offences Act of 2009. Section 5 of the Act deals with the commission of the offence of rape by a husband against his wife if he has sexual intercourse in certain listed circumstances, and that he knows he is suffering from a sexually transmitted infection (section 5(3)(e)). The penalty upon a conviction is life imprisonment or not less than 15 years.

The offences of rape in the above Act, and causing actual or grievous bodily harm in the Offences against the Person Act, 1864 could support such charges, if the director of public prosecutions so decides because your boyfriend lied to you and deceived you, and it cannot be said that you consented to have sexual intercourse with him. Consent is only effective if you know all the relevant facts each time you agree to participate. You clearly did not, because of your boyfriend’s deception, and you suffered harm to your body and health as a consequence.

As you have seen, I have referred to your circumstance under criminal law and such proceedings. I must admit that I am not aware of any civil claim for damages for recklessly or intentionally infecting someone with STDs. But since there is law which makes it rape, albeit between husbands and wives in circumstances of broken marriages, and those in the Offences against the Person Act, of offences causing actual or grievous harm, a civil claim could be filed for damages, even as a test case from which a precedent could be the result on which other claims can be pursued in the future.

But you would have to find a lawyer who would be prepared to forge a new path legally. All I can say to you now is that there are no clear precedents that if you sue, you would succeed, but it is possible, especially by way of a test case, which is properly researched and argued.

On your question of emotional distress or mental distress, agony or suffering, this would have to be proved by acceptable evidence and medical expert evidence. It is not like proving your expenses of $50,000, wherein you can produce your receipts.

What I am saying is that just looking at your situation on the face of it, one would, as the law stands today, say that you have no chance of success. But find a good lawyer who is not afraid of innovative causes of action and would not shy away from doing an innovative case or a case with innovative claims, then you would be more fully advised about the chances, or not, of success which you may have.

I am sorry that I cannot say otherwise because I firmly believe that, in a case such as yours, you ought to be able to file and pursue your claims in the Supreme Court for damages as what your ex boyfriend did was despicable in every sense. So I do wish you the very best and all success. Please find a good lawyer and discuss the entire matter with them so that you can be properly advised whether you have causes of action and your chances of success or failure. You need as close to certainty as you can get so that you do not spend good money after bad and suffer more losses.

All the very best.

I take this opportunity to wish my editor and the staff of All Woman and the Jamaica Observer, and all my readers and your families a healthy, happy, safe, and prosperous New Year.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.