Boy Meets Girl in the Litigious '90s

JOAN BECK

August 20, 1992|By JOAN BECK

CHICAGO — Chicago. -- Is it going to come to this?

Boy meets girl -- at a singles party, in the office, on campus, at a bus stop, in answer to a personal ad, wherever. Their eyes lock in sudden passion. Their hearts beat faster. Their hormones rage. It's your-place-or-my-place time, the bottom line of the sexual revolution.

Just as in the steamy movies or the breathless romance novels, they passionately undress each other, caressing, admiring, anticipating -- and looking covertly for signs of infection. For this is the litigious, infectious '90s, and love -- make that extramarital sex -- isn't quite the same.

He pulls a condom from his pocket. She has a supply in her dresser. He sighs deeply and produces a legal form for her to sign asserting she has no sexually transmitted diseases and promising not to sue if she contracts one by their romantic encounter.

Holding him close, she whispers gently that she must see a certificate from his physician that he has recently tested negative for HIV and other sexually transmitted diseases, that he is not bisexual and has had no intimate encounters that could have put him -- and her -- at risk.

The idea of spontaneous, no-strings, no-consequences, guilt-free sex is souring these days not only because of fears about AIDS but, increasingly, because of the possibility of legal entanglements.

It may not be long before those who want to feel safer about sex will need more than just condoms. Lawyers could also be telling people to insist that a partner provide a physician's certificate of freedom from sexually transmitted diseases of all kinds and sign a notarized statement agreeing not to sue later on if the result is catching a nasty disease.

So much for seeing a stranger across a crowded room and falling in love -- and into bed -- in a romantic burst of passion.

One thing that prompts the new legal squeamishness about sleeping around is the recent settlement of a lawsuit brought against the comedian Robin Williams by Michelle Tish Carter just before the case was set for trial. Ms. Carter, a cocktail waitress, charged that Mr. Williams failed to tell her he was infected with herpes and passed the treatable but incurable disease on to her in the course of having sex. She had demanded $6.2 million.

How much money she got from Mr. Williams wasn't disclosed. The actor did not deny having had an affair with Ms. Carter several years ago but also did not acknowledge or deny he was infected with herpes.

Catching herpes has become a common risk in extramarital sex. With an estimated 31 million people in this country infected, odds that a casual sex partner has the disease and will pass it on should be worrisome, even though herpes is much less infectious in some stages than in others.

The courts decided in the late 1980s that people who got herpes from sex partners who failed to disclose their infectious condition could seek compensation through the legal system. The high-profile Williams case calls fresh attention to the issue.

But winning such a case can be tricky -- especially when lawyers are trying to break new legal ground and there are questions about how far the courts should be intruding into the privacy of the bedroom and the intimate relationships of sex.

A plaintiff may have to prove that he or she was not infected before the encounter at issue and could not have caught the disease in any other sexual dalliance. Civil-rights laws can make it legally difficult to obtain medical records and to compel a person to be tested, especially if AIDS is involved.

Lawyers are also beginning to raise the point that both partners have some responsibility for protecting themselves from the hazards of casual sex -- a fact that AIDS educators have been pushing for years.

Public attention to herpes lawsuits has been overshadowed recently by litigation involving AIDS, a much more lethal hazard of careless passion.

The legal ground for cases involving AIDS is still somewhat squishy. Many cases have ended up in criminal court, reflecting public anger over the idea that someone who is HIV-positive could carelessly or deliberately pass the infection on to someone else. About half the states now have laws directed at such behavior. Some make it a misdemeanor, others a felony subject to steep fine and prison sentence.

So far, there have been fewer civil cases involving AIDS infections than herpes. But a few plaintiffs have gone to court claiming an HIV-positive partner subjected them to the risk of AIDS, even though they did not become infected. In one such case, Marc Christian won $5.5 million from the estate of his companion Rock Hudson, although he did not contract the AIDS virus from him.

There is a way, of course, to minimize the medical risks and maximize the legal protections of romance, sex and love. It's called a marriage license, and for several good reasons, doctors, lawyers and lovers are increasingly recommending it.

A5 Joan Beck is a columnist for the Chicago Tribune.

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