The Cost of Kissing and Not Telling

By David Brand

For most people, the thought of publicly disclosing their sexual secrets is the stuff of Freudian nightmares. But last year, after Martin (not his real name), an electrical worker, was sued by his former girlfriend in New York City, he was required to answer a lawyer's questions on intimate details of his sexual activities: "Did you ever suffer from blisters or sores on your penis or genitals?" "Did you ever have difficulty achieving or keeping an erection during sexual intercourse?" Martin discovered that the true fury of hell is not a woman scorned but a woman who contracts genital herpes from her lover.

Increasingly, outraged spouses and lovers -- most of them women -- are suing their partners for infecting them with the sometimes painful and debilitating condition. Genital herpes, most commonly caused by the herpes simplex Type 2 virus, is thought to have infected up to 20 million Americans, and has no cure. The surge of litigation is largely based on the claim that one partner did not inform the other about his or her infection. This, the suits often charge, constitutes negligence.

These claims are being given momentum by an appellate court ruling last December in New York, a state that exerts substantial legal influence beyond its boundaries. The decision upheld the right of Jane Maharam, 56, to sue her former husband Robert, 56, on her claim that he had herpes and did not tell her. The court found that such partners have a legal duty to inform each other about their venereal diseases. Jane, who was married to Robert, an entrepreneur, for 31 years before the couple were divorced in 1984, is seeking damages of more than $2.5 million. The manager of a record company in Manhattan, she says she had few reservations about filing a suit charging Robert with giving her herpes. "There's a stigma," she says, "but I have to conquer those feelings because I know I have to do this."

Even before the New York case, courts in several other states had allowed plaintiffs to sue their partners for transmitting sexual diseases. That, lawyers say, may lead to a freshet of cases involving acquired immunodeficiency syndrome, or AIDS. Louis Alexander, a Syracuse attorney who has studied civil actions involving sexually transmitted diseases, notes that over the past two decades the legal system has become more sympathetic to the injured party. "With herpes and AIDS, we're dealing with diseases that are incurable," he says. "My view is that there should be a legal duty to disclose them."

One well-publicized herpes suit has been filed in Manhattan Supreme Court by Linda Feldman, a 24-year-old cellist, against Singer Tony Bennett, 60. Feldman claims damages of $90 million, saying the singer infected her during an eight- month affair that began in 1985. Feldman says that after she discovered her infection, Bennett told her, "I've had it for years. You get used to it. It's God's way of giving your sex life a rest." Bennett, who has produced medical records claiming that he does not have the ailment, has filed a $100 million counterclaim for defamation.

Like many lovers, Martin, the electrical worker, kept his infection a secret, which he came to regret after ending his relationship with Debbie (not her real name), a secretary in her early 30s. He met Debbie in June 1985, and their affair was idyllic until early August, when she broke out in painful blisters around her vagina. After that, says Debbie, "the relationship deteriorated, and by Labor Day he dumped me and left me alone with a case of herpes."

Angered by being "treated very badly," Debbie contacted Manhattan Lawyer Steven Harris. The attorney established that Martin, who had little money, was covered by a homeowner's insurance policy, making it possible to collect on a judgment. At his deposition, Martin admitted that he had not told Debbie about his infection. This March, Debbie and Martin agreed to a settlement of $119,052, to be paid by the insurance company.

The insurance industry, unhappy about getting into the bedroom business, began changing homeowner policies three years ago to exclude claims for sexually transmitted diseases. While this could have a dampening effect on some new cases, many previously filed suits are moving through the courts. In Minnesota, Lawyer Stewart Perry, who jokingly calls himself the herpes king, has ten cases pending, seven brought by women.

Perry says he warns clients to expect questions about their sexual past from lawyers. Those who insist on going ahead, he adds, share one characteristic: fury. "They are so angry," says Perry. "One woman told me, 'At least in a rape, once it's done, it's done. But this goes on forever.' " That indignation is shared by a 26-year-old Chicago interior designer, who is suing her former lover in Cook County Circuit Court. Despite the potential publicity and embarrassment, she says, "I started this, and I'm going to finish it."

Litigants may have more difficulty in proving their cases when the disease is AIDS because of the time lag between exposure to the virus and development of the disease. Experts estimate this to be an average of four years. (The herpes incubation period is often two weeks or less.)

That has not discouraged Marc Christian, 33, from filing an $11 million suit against the estate of his lover Rock Hudson, the movie star who died from AIDS complications in 1985, and against Hudson's personal secretary, Mark Miller. Christian alleges in his Los Angeles County Superior Court suit that Hudson did not tell him he had AIDS. As a result, says Marvin Mitchelson, the nation's best-known palimony lawyer, his client Christian "lives in constant fear" of getting the disease. The case, declares Mitchelson, is really not so unusual. "It is akin to someone coming into your house and falling through a trapdoor."

With reporting by Andrea Sachs/New York, with other bureaus