DEAR MRS MACAULAY, 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.

I recall that I once answered a similar complaint which arose after the relationship had ended, when the woman discovered that she had herpes and that her ex was a carrier and knew that he was.  I believe this was earlier this year when it was published and my opinion was that she could file a claim for damages. I am happy that you have written about your sad and painful experience, as it affords me this opportunity to re-examine the matter and add to my earlier opinion.

So, let me deal with your own particular case, which is egregious and could indeed be the cause of your infertility. Each infection caused you injury.  You have not stated which particular sexually transmitted disease (STD) your husband kept 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 am sure that your doctor must have the particulars in his/her records.  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 engaging in sexual contact with other women, as he clearly is more interested in the sexual relations rather than the fact that he keeps on being infected and bringing it home to you.

I must say that you have been very patient and long-suffering. I hope that you are not being so now, and that you are and have refused him any further sexual contact with you.   You see, since you know, you have the legal right to refuse him, even though you are still husband and wife. You have to take this step to minimise the incidence of further injury to yourself.

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, and for the court to accept the report as that from an expert witness. Leave could then be sought for it 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 medical opinion.

You shall of course need to retain an attorney-at-law to represent you and to file all the necessary documents to pursue your claim. Make sure that you retain one 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, and anything else.  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 to him, 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. 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.  But do so quickly.

Your husband showed reckless disregard about whether or not he was infecting you with his STD. 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 or Tort, and  on which you can base your civil claim for damages on more than one ground, and on the injuries caused to you as a result.

You would have to get with your doctor’s report, another expert medical report from a consultant specialist gynaecologist/obstetrician that the several infections you suffered did result in your becoming infertile. What I said about the Rules of Court for these reports also applies to this one.

So you can sue for a goodly sum for general damages for all the pain and suffering he caused you — physical (the physical pain/ discomfort of the infection and during the length of time of the various times of treatment); and mental and emotional injuries and suffering from the resulting fact of your infertility, which may be irreversible and which would have adverse effects on your life and throughout your lifespan.

I must just mention this, that 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 and retain your lawyer to act for you and file all your claims for damages and divorce, and then seriously consider the question of his having committed the offence of rape several times against you by knowingly and intentionally having sexual intercourse with you when he knew he was suffering with a STD infection.  Please tell your lawyer everything and 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.