CA Supreme Court Tackles Sexual History Disclosure Law

The Los Angeles Times reported that the California Supreme Court heard oral arguments in Los Angeles of John B. v. Superior Court on Tuesday April 4. The questions at hand were

Under California law, a person can be held liable for monetary damages for failing to disclose that he or she has a sexually transmitted disease. At issue before the court is whether a person should also be responsible for informing a partner when they have reason to suspect they contracted a sexual disease but have not received a diagnosis.

Radical Russ (filling in for Pam over at The Blend) very rightly worries about the implications of this case for privacy of the identity of one's sexual partners. I agree with Russ that it shouldn't really be about "who" you did something with, it's "what" you did. HIV prevention is based on changing sexual practices, not stigmatizing sexual minorities. (One could argue that HIV prevention has thus been stigmatizing sexual practices which has led to stigma associated with sexual minorities, but that is a separate but related question!)

(1) Under California law, may a person be held liable for failure to disclose to a sexual partner the fact that the person has a sexually transmissible disease only when the person actually knows he or she has a sexually transmissible disease (see Doe v. Roe (1990) 218 Cal.App.3d 1538) or also when the person reasonably should have known he or she has such a disease? (2) If the duty to disclose is limited to situations in which a person actually knows he or she has a sexually transmissible disease, did the discovery permitted by the Court of Appeal in the present case violate either traditional standards of discovery (e.g., relevance) or constitutionally protected rights of privacy?

My friend Jenny Pizer, senior counsel of Lambda Legal, was quoted in the article summarizing the most salient issues at hand. She hoped "the court would come up with a rule that applied to all sexually transmitted diseases, not just AIDS." She also said that Lambda Legal has strong concerns about protecting the privacy of third parties who could be pulled into a lawsuit.

This is an issue which doesn't just show up in this lawsuit, but is also prevalent in other situations in which disempowered or stigmatized groups need to access the judicial system to enforce, protect or assert their rights. In order to do so, they will usually have to identify themselves and have private and intimate facts revealed about them, and made part of a government public record!

Of course, the 67 members of the State Assembly who recently voted to enact mandatory HIV names reporting in the State of California did not even consider amendments which would have allowed people whose confidentiality and privacy is violated to file lawsuits without identifying characteristics.