Sexually transmitted diseases (STDs) exist. And, they can be easily transferred from one person to another. This often happens accidentally. But what happens if a partner knows that he or she is infected and has sex with another person without telling that person about the infection? 

If this happens in Texas, that person could go to jail and face a civil lawsuit. Contracting an STD causes emotional turmoil and physical injury. Some STDs are curable, some are not.

Herpes is not deadly, but it is incurable. Herpes can also make it easier for a person to contract HIV/Aids through open sores. The results can be devastating for a person contracting the disease.

Because the consequences can be high, it is important to understand the duty to warn a partner and what to do if you are a victim. There are medical and legal consequences for both. 

Herpes: The Basics

There are two different kinds of herpes, oral and genital.

In intimate relationships, it is the presence of genital herpes that can be problematic. Genital herpes often has no discernable symptoms. Even without symptoms present, it can still be passed on. Because herpes is latent, often people mistakenly believe that it cannot be passed on unless a person is symptomatic. It is estimated that some 40 to 50 million people have the disease in the United States.

The condition can be managed with antivirals which can shorten and prevent herpes outbreaks. The condition can also be managed by using a daily suppressant which can reduce the chance of passing the virus on to an intimate partner.

Herpes can complicate a pregnancy. If contracted during the first trimester, the disease may be passed to the fetus. A pregnant woman who suffers from herpes may be required to give birth by C-section.  If a newborn acquires the disease from the mother, the baby may suffer seizures, lethargy, and coma, among other symptoms.

While the Texas law does not mandate that a person tell their partner that they have herpes, knowingly or recklessly passing that condition on without consent is against the law.  A person can face both civil and criminal liability.

Criminal Liability

In some part, the charges for knowingly failing to disclose depend on the STD involved. If the STD is HIV/Aids, a person could be charged with attempted murder. If the STD is herpes, a person could be charged with assault.

In Texas, assault is defined as intentionally, knowingly, or recklessly causing bodily harm to another person.  Assault is grounded in an unwanted touching. If a person discloses the condition to a potential partner and the partner knowingly consents, the person with the condition has a defense.

In Texas, assault can either be charged as a misdemeanor or a felony depending on the circumstances. Assault that causes physical harm is most often charged as a Class A misdemeanor which is punishable by up to 1 year in jail and a fine up to $4,000.

A Civil Lawsuit is Also a Possibility

Not telling a partner that you have an STD and passing that STD on could expose a person to civil liability for assault. An infected partner could sue for personal injuries alleging negligence. 

Negligence is based on a number of elements, all of which must be proven.

  • Duty – The question here is whether the infected person has a duty to warn their partner of their infection.
  • Breach of Duty – Does the infected person breach their duty in knowingly failing to warn?
  • Direct and Proximate Causation – Was the injury to the partner actually caused by the defendant’s failure to inform the partner? Was it foreseeable to a reasonable person that failing to inform could result in injury?
  • Damages – Is there actual and compensable harm to the plaintiff?

Each of these elements must be proven by a preponderance of the evidence. The burden, while substantial, can be met. Ask your attorney for more information.

An attorney can help you understand your duty to warn and what may happen if you knowingly fail to do so. Likewise, if you are a victim and believe that a partner knowingly failed to warn, you may have questions. Bring your questions to a trusted attorney.

To learn more, call our law firm at (713) 224-4878 or visit our contact us page to send us an email.