Ex wilfully infected partner with a STD

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 either knowingly had unprotected sexual relations with their wives, partners and others, without disclosing their health reality to the women before engaging with them sexually.

This situation was brought to the Government’s attention for a good while after the explosion of HIV/AIDS was recognised as a then fatal disease, which took the lives of innumerable men and women and which later placed infected persons on a lifelong dependency on medical 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 of persons who were being infected by their partners who purposely did not disclose to their partners their infectious state with any  STDs, especially incurable ones, before engaging in intimate sexual relations with them. But  to date, no legislation has be 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 it to cover instances of any wilful or reckless infection of a sexual partner with any STD/STI, but such an amendment has still not been done.

So what can you, or anyone else who has suffered like you do under the current legal position in Jamaica?  The above is not to say that the offence/wrongful act of intentional or reckless infection of another of a communicable disease has not been dealt with legislatively in Jamaica.   It has happened specifically in two Acts of Parliament, the first in the Child Care and Protection Act, 2004.  Its Section 22, which deals with “disease testing of accused or convicted offender”, in its sub-section (1)(b), 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 court may make an order  that the person must submit for a medical examination and testing to ascertain whether the person is a carrier of a communicable disease and such person, if positive, commits an offence and is liable to be fined or imprisoned, etc, all in the best interests of the child.

The second legislative provision which has recognised sexual transmission of STDs is the Sexual Offences Act 2009, in its Section 5(3)(e) by referring to Section 5 (1), which states that a husband commits an offence of rape against his wife if he has sexual intercourse with her in any of the circumstances specified in Sub-section(3) which states that “the husband knows himself to be suffering from a sexually transmitted infection”.  And it also makes clear in its sub-section(2) 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.

But also note that 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 because of this lacuna in the law.  Remember that the penalty for rape is life as the maximum, or such other term as the court considers appropriate, but this cannot be less than 15 years.

Anyway, despite this situation, 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, but that 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, 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 to remedy the wrong(s) committed against you.

His answer to you when you faced him with his health is rubbish, and it proves his recklessness whether or not you were infected by him.  His saying that he was not symptomatic at any time when he was intimate with you, is self-serving at least, and moreso, that he couldn’t care less about what he caused to happen to you.  It is clearly understandable that you wish to sue him.

Can you sue him?  In my opinion, yes you can indeed  do so.  There are sufficient legal statutory and otherwise 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 do civil claims.  The only problem, I see is for you to find an attorney-at-law 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, in my opinion , intentional failure to disclose his infection to you which means that there was no consent from you to his sexual contact with you).

It is unfortunate, because for years while I was active in and also headed women’s rights organisations (especially in legal rights), I used to seek persons like you who were victimised by their partners to your detriment and made to suffer physically and financially, so that I could file claims as test cases in order to cause the points to be articulated in the courts and hopefully obtain judgments which would have served as precedents; but alas, I never succeeded in getting anyone.

So, please try and find a good civil claims attorney-at-law 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 and get a judgement on your behalf and damages appropriate for all you have suffered.

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.  Please consult a lawyer as soon as possible. You owe it to yourself and your ex should suffer the consequences of his selfish recklessness towards you.

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.