Dear Mrs Macaulay,

Can I sue a man for knowingly having an incurable STD and passing it on to me? I just found out that I now have herpes because my ex-partner is a carrier and did not inform me. He said he was never symptomatic at any time that we were intimate, that he protected himself, and that his health is his personal business. What can I do?

What an unfortunate situation you have found yourself in, and it highlights the situation of many women in Jamaica who have been infected by their male partners who knowingly had unprotected sexual relations with them without disclosing their health reality.

This situation was brought to the Government’s attention for a good while after the explosion of HIV/AIDS, when it was recognised as a then fatal disease which took the lives of innumerable men and women, and which placed infected persons on a lifelong dependence on drugs to manage the symptoms of the disease.  This is both a personal and financial burden.

The women’s movement lobbied for legislators to have drafted and passed specific and clear laws to remedy the situation, but  to date, no legislation has been passed here.  However, in 2018, a Joint Select Committee of Parliament recommended that the Offences Against the Person Act be amended to add a specific criminal offence to cover instances of any wilful or reckless infection with any Sexually transmitted disease (STD)/ Sexually Transmitted Infection (STI), but such an amendment has still not been done.

This is not to say that the offence/wrongful act of intentional or reckless infection has not been dealt with legislatively in Jamaica.   It has happened specifically in two Acts of Parliament — the Child Care and Protection Act, 2004 (CCPA) and the Sexual Offences Act 2009.  The CCPA in Section 22, which deals with “disease testing of accused or convicted offender”, provides that when any person is charged with or convicted of an offence in relation to a child, which is “any offence involving conduct likely to result in the transmission of a communicable disease to a child”, that the court may make an order that the person must submit to a medical examination and testing to ascertain whether the person is a carrier, and if positive, would commit an offence, and be  liable to be fined or imprisoned, all in the best interests of the child.

The Sexual Offences Act, in Section 5, states that a husband commits an offence of rape against his wife if he has sexual intercourse with her …”knowing himself to be suffering from a sexually transmitted infection”.  It also makes clear that “consent” shall not be deemed to exist in certain circumstances, which clearly would have covered your situation had you and your ex been married.  The provision does not cover the situation if the spouse with the STD is the wife, which still remains to be dealt with to ensure the clear discriminatory aspect does not remain. Remember that the penalty for rape is life as the maximum, and 15 years the minimum.

The courts have recognised that a person who knows the risk and actually transmits a STD can be charged and found guilty of the offence of causing grievous bodily harm or even wounding, which fall within the provisions of the Offences Against the Person Act. Actual transmission and infection of the disease must have occurred, and this has happened in your case.

So what is the position for someone who wishes to sue in a civil action based on the legal situation in Jamaica now? I have always recognised the fact that “consent”,  which is required for any lawful sexual contact, is lacking and non-existent in situations like yours, and therefore, with no consent, he would have raped you each and every time he had sex with you without disclosing his condition to you. He therefore committed the criminal offence of rape, and he certainly committed a tortuous act against you each time, and torts are actionable in civil courts for damages.

His answer to you about his health being his personal business is rubbish, and it proves his recklessness. His saying that he was not symptomatic is self-serving, and proves that he couldn’t care less about what he caused to happen to you.

In my opinion, yes, you can indeed  sue him.  There are sufficient legal statutory and other provisions now recognised in Jamaica and some case law, albeit in criminal matters so far, but criminal cases require a higher burden of proof than civil claims.

The only problem I see is for you to find an attorney who will agree to take on your case and proceed with it after careful preparation to ensure that the court looks at all the legal provisions and even authorities relating to the tort of negligence (which is clear from your ex’s response to you, and from his intentional failure to disclose his infection which means that there was no consent from you to his sexual contact with you).

So please try and find a good civil claims attorney who can examine your situation and all you have been forced to suffer, and will have to continue to go through, who can prepare and file a claim for you in the Supreme Court and thereby rectify the egregious position you have been left in by your ex-partner.

You must tell the lawyer everything so he or she can have a full understanding of the matter and so can properly access your case and can determine the chances of success or not.

Do not lose faith.  You owe it to yourself, and your ex should suffer the consequences of his selfish recklessness towards you.

All the very best and I wish you success.

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.