Brief Fact Summary. Plaintiff filed for divorce and included in her complaint four personal injury counts alleging that her husband, Defendant, transmitted genital herpes to her during their marriage.
Synopsis of Rule of Law. The determination of if sexual relationships between spouses constitute marital or nuptial privileges thereby entitling any sexual tort committed upon a spouse to interspousal immunity is determined based on the facts of each case.
Issue. Do sexual relationships between spouses constitute marital or nuptial privileges thereby entitling any sexual tort committed upon a spouse to interspousal immunity?
Held. The marital privilege of sexual relations does not include immunity to personal injury suits between spouses based upon the transmission of a sexual disease.
Marital or nuptial privileges are special matters of privacy and familiarity beyond the reach of the law of torts. These are determined by the courts on a case by case basis. In this case defendant continued to have sexual relations with his wife after discovering that he had contracted herpes from an extramarital relationship. It is arguable that sexual intercourse between spouses is by nature an act falling within the scope of the marital or nuptial privilege. However, it would be unconscionable to permit a person to escape liability for infecting a spouse by merely claiming that the transmission occurred during privileged sexual relations.
The defendant cannot breach his marital relationship through extramarital intercourse and simultaneously claim immunity for consequences flowing from his own willful and intentional conduct. Defendant’s intentional act was not knowingly transmitting herpes to Plaintiff, but rather the act of sexual intercourse with the Plaintiff after sexual relations with someone else which placed the plaintiff at risk of physical harm. This violated the duty of care owed to one’s spouse.
Consent to sexual intercourse vitiated by one partner's fraudulent concealment of the risk of infection with venereal disease is equally applicable today, whether or not partners involved are married to each other.View Full Point of Law