Welcome back to Ask a Lawyer, wherein I, a lawyer, respond to your questions. Got a vexing legal issue? Send it over, or drop it in the comments below. Today’s query:
My girlfriend of a year dumped me and insisted on having breakup sex. Flash-forward a couple weeks, and something in my pants starts burning, but not in a good, tingly way. I go to the doctor and test positive for chlamydia. No question I got it from my ex. After I confronted her over text, her reply included, “Whoops. Surprise!” I think she intentionally had breakup sex with me just to give me something she got while planning a long exit from our relationship. If I wanted to, could I sue her? Is what she did illegal?
First thing’s first: Is breakup sex a real thing? Has anyone actually spotted real breakup sex in the wild? If it’s not a complete cultural myth, is it bittersweet but wistful, with a trembling tear rolling down your cheek as you convulse in orgasmic spasms, followed by angry spooning? Or do you just take turns gently whispering things you find irritating about each other as you grind away, alternating between tender caresses and spiteful scratches?
Or is breakup sex just an STI delivery system for a scheming soon-to-be-ex-partner?
Anyways, it’s your lucky day. Well, not because of your diagnosis—nothing lucky about that, except that you had a noticeable chlamydia infection, which is frequently asymptomatic, and were able to catch it. But you’re lucky to have the dazzling array of legal options available to you. Assuming she did what you said she did, you can sue your ex—we’ll call her Lydia—in a civil suit. It is also against the law to do what she did in California, not just with chlamydia—which became the official STI of the golden state in 1972, same year the California dogface butterfly became the state insect—but all sexually transmitted infections.
In California, it’s a misdemeanor for someone with a contagious, infectious, or communicable disease to willfully expose someone else to that disease. But—and there’s always a “but” in most things legal—we have to consider a single word in the statute we’re talking about: willfully. That may be hard to prove. A text that says, “Whoops. Surprise!” is as close to a smoking gun as you have here, but hopefully you’ve got some other evidence that may back you up: Clinical test results are the first thing that come to mind. If a California district attorney’s office did pick up your case, they would possibly investigate to see if something like this happened with prior partners. The prior willful failure to tell could very well establish absence of mistake.
And it’s not your case to make under criminal law. It’s the people’s case. The first hurdle you’ll have to face here is getting your local district attorney to give an inflamed urethra about your newly leaky nether bits. Beyond that, it will be up to the DA to build a case on whether this infection was willfully given to you. Which may not be worth the DA’s time, in light of other case priorities.
On a related note, the stakes get higher under California law when someone with HIV has unprotected sex, doesn’t disclose HIV status, and intends to infect the other person. That’s a felony with some actual jail time behind it.
Keep in mind that for any of the cases above, you only need to have been exposed, not have actually contracted the disease or virus. This is handy just in case you didn’t get chlamydia, but Lydia had texted, “I just gave you chlamydia.” Nice try, Lydia: Now meet the business end of this warrant.
Now, let’s go the private route. In California—and I’d hope in every other state, except maybe North Dakota, where people don’t ever touch each other anyway—people who know or should know they have an STI generally have a legal duty to avoid sexual contact or to warn potential partners. It’s the infected person’s call on exactly when to drop that enticing fact during foreplay: I’m not a doctor, but the last clear opportunity is probably before third base, but without ruining second base (assuming no skin-to-skin erogenous-zone contact there), at least based on existing sex-metaphor guidelines. We’ll call it the Shortstop Disclosure Mandate.
You have an array of arrows in your legal quiver to poke at Lydia: negligence, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and fraud by concealment, to name a few. The real question at law is what evidence is required for each claim, and, further, what kind of evidence is required to support the damages you’re going to seek. A chronic and currently non-curable infection (herpes, affinity to the works of Ayn Rand, etc.) will likely make a stronger case than something that’s just passing through due to its longevity and overall life-quality impact.
So buck up, take your antibiotics, and call your preferred personal injury attorney, because you just might have a case. You’ll also want to look into whether you can file a civil case under a pseudonym California courts have permitted victims to keep their names out of filings to avoid embarrassment and harassment for sex-related cases.
And please: Make sure to get the all-clear from your doctor before heading out into the field. And be safe. If you got sidelined by breakup sex, you won’t believe what you can catch with rebound sex.
Ask a Lawyer is a practicing lawyer with over 15 years of broad legal experience. He is part of the team at Unwonk Podcast and can be found on Twitter. Keep in mind that this is general information, and not formal legal advice or legal representation; if you need any of that, you should get it from a lawyer in real life, not an internet column. A legal problem is serious and fact-specific, and you should treat it accordingly. But you have common sense and already knew that.
Art by Tara Jacoby.
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