Liability in the Era of Dangerous Liaisons

ELLEN GOODMAN

November 13, 1992|By ELLEN GOODMAN

Boston. -- This is how the Magic Johnson story moves from one public place to another. Off the basketball court and into the court of law.

One day, the man with the megawatt smile is forced to face his teammates' fears that they could be infected by him. The next day, he's forced to face a woman's claim that she was infected by him.

One week his book is published bearing this paragraph about his many sexual partners: ''Of the women I have talked to, nobody has tested positive -- at least not yet. Thank God for that.''

The next week, pieces of a poignant letter, allegedly sent to Magic before his AIDS test, are published in Newsweek bearing this message from one sexual partner: ''Although you did not have the courage to face me, you will one day soon have to account for it.''

Now, Magic Johnson's lawyer says that yes, the star had sex with the woman called Jane Doe. Yes, they are both HIV positive. But who knows if she infected him, he infected her or each was infected by someone else.

Now, Jane Doe's lawyer says that his client, a Michigan health worker, had been tested for AIDS three times and had been celibate for eight months before her Magic night. He says that she knows who infected whom.

Soon we may be faced with the pathetic sight of two victims of the same deadly virus arguing before a jury over sex, death and a $2 million claim. AIDS does not grant immunity from such litigious excess in our society.

Today, there are one million Americans with HIV. Each one got it from someone else. Some from lovers, some from strangers, some from needles, some from blood, some from men, some from women.

The disease has bred a new set of protective laws. The courts have established ''a duty to warn'' sexual partners. More than half the states have made it illegal for a person with HIV to have sex without telling a partner. If, that is, the person knows he or she is infected.

An irony of those laws is that they offer people a legal incentive not to know. But from all accounts Magic Johnson is one of the many who truly did not know. If he is liable for damages, then one million Americans with HIV can sue or be sued by each other. If he is liable then any American having sex is potentially liable for harming a partner.

But the Michigan lawsuit argues that Magic should have known, that his ignorance was willful and his behavior wantonly dangerous. I have no trouble believing that nor does Magic, now.

In his book he writes, ''In the age of AIDS, unprotected sex is reckless. I know that now, of course. But the truth is, I knew it then, too. I just didn't pay attention.''

Magic is guilty indeed of sexual irresponsibility -- to put it tepidly. Even now, in his book and his interviews, he seems to alternate between confessing and bragging about his sexual exploits. For a long time, he simply believed that he was protected from harm by his stardust.

But even in Jane Doe's account, when she confronted Magic before his wedding, he said, ''But I can't be sick. Look at me.'' I don't think he can be made liable for this denial. At least not solely liable.

Sexual responsibility is, after all, an equal-opportunity ethic. The health-care worker, tested three times for AIDS, was not into denial. If Magic should have known he was at high risk, then she should have known he was a high-risk lover.

Many women are truly vulnerable to the disease and the men who carry it -- women who cannot insist on protection without risking abuse. But that description doesn't fit Jane Doe or Magic Johnson.

''Immediately before sexual intercourse,'' the suit says, ''Jane Doe asked him about the use of a condom'' and Magic ''expressly declined to use a condom.'' She had a comparable right to expressly decline to have sex. She didn't.

Later, in the letter Jane Doe claims to have written, she reminded Magic of Deuteronomy 5:17 -- Thou Shalt Not Kill. But I find it hard to believe that Magic meant to kill anyone. Least of all himself.

He got AIDS from someone. He may have given it to someone else. Both Magic and Jane Doe violated the code written for an era of dangerous liaisons, the obligation to protect oneself. It's a shame, but not a crime. As for the $2 million lawsuit? This man is already paying.

Ellen Goodman is a syndicated columnist.

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