My husband keeps cheating and bringing home infections, and I spend a lot of time at the doctor. I think that it’s because of him why I am now infertile. He insists he is not the problem, yet it recurs, like clockwork. I want to divorce him eventually, and sue him for pain and suffering. Would I have any success in doing this? He has caused me tremendous emotional pain over the course of the five-year marriage, and I am finally financially independent so I can make it on my own.

Your case is egregious and your husband’s actions could indeed be the cause of your infertility. You have not stated which particular sexually transmitted diseases your husband keeps infecting you with. But his responses to you were dismissive and fall within the usual denials of all deceitful men in seeking to absolve themselves of the guilt and blame for their acts.

I also conclude that you were not at any time during your marriage engaged in any extra-marital relationship, which makes you certain that your husband was the one to infect you. You have been very patient and long-suffering, and I hope that you have refused him any further sexual contact with you.

You should inform you doctor that you need him/her to secure your records, and to prepare a detailed medical report for your use in court. There are Rules of Court for how this should be done, for the court to accept the report as from an expert witness, and leave could then be sought for the report to be used without your doctor being called to give oral evidence.

Certain sentences must be included in the report, and the Rules detail all the information the doctor must state in it, apart from the facts and their medical opinion.

You shall, of course, need to retain an attorney to represent you and to file all the necessary documents to pursue your claim. Make sure that you retain an attorney experienced in the practice of family law, the law of tort, and in particular, abuses of women and injurious conduct to them resulting in physical, emotional and mental injuries. I need not make any detailed comments on the issue of you filing for a divorce. You have the clear right to do so, and no one can prevent you from doing so.

So let me just deal with whether you can sue him for damages for pain and suffering, and for the attendant expenditures which you had to meet. It is my view that you can indeed file your suit, though there is no specific legislation which spells this out. However, the Sexual Offences Act specifies that a husband commits the offence of rape when he knows that he is suffering from a sexually transmitted infection and he has sexual intercourse with his wife. This is so because in such circumstances, as soon as you knew, you pointed this out, and you had to receive medical treatment. He cannot therefore deny that he knew that he was infected and was infecting you.

You therefore, as I said, have every right to refuse to have any further sexual intercourse with him, as you could not consent to such. It is rape if he persists and has sex with you, and he has raped you on every occasion he did after you first pointed it out to him.

So you can not only divorce him and sue him for damages, but you can also make a criminal report against him. But please get your attorney first before you act. Do so quickly.

Your husband showed a reckless disregard about whether or not he was infecting you. He acted negligently despite the fact that he owes you a spousal duty of care , as you do towards him, not to intentionally or negligently cause each other harm and injury of any kind. His continuing in the wrongful actions means that he was acting knowingly and intentionally and with a reckless disregard for your safety. This gives rise to the application of the law of tort, and on which you can base your civil claim for damages on more that one ground, and on the injuries caused to you as a result.

You would have to get details, with your doctor’s help, and another expert medical report from a consultant specialist gynaecologist/ obstetrician, that the infection you suffered did result in you becoming infertile.

You can sue for a goodly sum for general damages for all the pain and suffering he caused you. Your lawyer should add to the title of your civil claim that it is also being filed under the ‘Inherent Jurisdiction of the Supreme Court’. This expands the jurisdiction pursuant to which the court must act in considering your claims.

So please act now as quickly as you can. I wish you the very best and all success.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions to allwoman@jamaicaobserver.com. Mrs Macaulay cannot provide personal responses.