Illustration by Lia Kantrowitz

Should You Sue Your Partner For Giving You Herpes?

People have successfully sued their ex-partners for infecting them with the virus. But is it a useful way of holding irresponsible sexual behavior to account—or does it stigmatize STD sufferers?

Oct 18 2017, 12:35pm

Illustration by Lia Kantrowitz

In "Unscrewing Ourselves," our first annual Sex Month on Broadly, we explore the state of sex ed today by highlighting the individuals and ideas changing our sexual health for the better. Read more from this series here.

After hours spent discussing his humanitarian work in Africa and his fears about contaminants in the water supply, jazz singer Laura Helm claims that she and RnB singer Usher were in high spirits. She was enthused by his concern for the environment, social justice, and sense of public service, and things turned physical. According to court documents filed by Helm, they had vaginal sex before she performed oral sex on Usher. Moments after ejaculating, Usher grabbed his penis and rushed to Helm's bathroom.

According to Helm's court filing, as reported in Radar, they had sex again a few weeks later. She claims this subsequent sexual encounter was also odd.

Usher opened his hotel room door, smelling freshly showered. After chatting for a while, he disappeared for a shower. When he came back, he encouraged Helm to give him a blowjob on the balcony. At first she demurred, but subsequently agreed. Afterwards, Usher put on jazz music and went down on her. Immediately after they had sex, Usher got up and ran to the bathroom. As he took another shower, Helm let herself out of the hotel room.

Days later, Helm claims she noticed a bump on the inside of her cheek. Then a painful, pea-sized one appeared on her vagina. Helm was later diagnosed with type two of the herpes simplex virus (HSV-2)—a lifelong infection that can cause painful blisters and ulcers around the genitalia, and can be transmitted to other people even when the carrier isn't showing symptoms. The World Health Organization estimates that 11 percent of people aged 15-49 worldwide have HSV-2.

Helm is now suing Usher—real name Usher Raymond IV—for $20 million in damages for "extreme and debilitating mental, emotional and physical distress and anguish, humiliation and embarrassment." The charges against Usher include fraud, negligence, intentional infliction of emotional distress, and battery.

Read more: A Hostage Negotiator Explains How to Tell Someone You Gave Them an STI

This isn't the first time Usher has faced such charges. The singer is currently defending himself in multiple suits. In California, two other women and one man are also suing Usher, alleging that his failure to disclose his STD status led to them contracting herpes. In July, reports emerged of Usher paying out $1.1m after a woman claimed that he infected her with herpes.

"I'm very optimistic," says Lisa Bloom, the lawyer who represents three of Usher's accusers barring Helm. "I reviewed all the cases carefully before I took them on, and I know all of them have corroboration."

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Bloom's clients are suing Usher on charges of sexual battery, fraud, negligence, and intentional and negligent infliction of emotional distress—all civil rights violations. "If Usher is positive for herpes and failed to warn them, that's considered an assault, as legally, the consent they gave to the sexual activity at the time [not knowing his STD status] would be revoked," she says. "So it would be considered non-consensual sexual assault."

Usher has not responded to Broadly's repeated requests for comment. However, his legal team has filed a "general denial" of the claims relating to the trio of accusers Bloom is representing.

Across the US, similar civil suits have been brought by individuals against former sexual partners who allegedly exposed them to STDs. (These are not to be confused with criminal prosecutions that criminalize the intentional spreading of the HIV virus—which are relatively rare.)

There are few records of the total number of STD transmission lawsuits filed over the years, but Herpes News, a blog for those who have the virus, says that civil suits involving herpes stretch back over two decades. Most of the cases listed on the site involve women suing their heterosexual partners for considerable sums of money. In one example from 1996, a 32-year-old woman sued her ex-boyfriend for knowingly exposing her to, and infecting her with, herpes. He settled the case for $550,000.

Why sue over herpes, and not, for example, gonorrhea? It could be due to the incurable nature of the former. You can suffer outbreaks at any time—lesions that crust over or bleed; itching; and even painful open sores. In some cases, patients may experience flu-like symptoms, headaches, or have difficulty passing urine.

Herpes suits could also be more common due to the financial resources of people who contract and pass on herpes. "You see so few civil suits concerning alleged HIV transmission," says Catherine Hanssens of the Center for HIV Law and Policy. "That's because HIV is most prevalent in under-resourced communities where a civil suit would be pointless, since people without money and regular employment are essentially damages-proof."

"I've gotten calls from a lot of women who've told me they dated a guy who works at a Burger King and he gave them a disease," says attorney David Jaroslawicz, who specializes in civil STD suits. "And I tell them that there's no point in suing, because if they win they're not getting any money."

So how difficult is it to prove in court that someone gave you herpes? "It depends how many [sexual] partners the woman has had," Jaroslawicz explains. "Assuming she limits her partners, and goes for regular exams, and she can say that Mr. X was her last partner since then, and he has it and his medical records show that he has it, then it isn't so complicated."

Some have argued that civil suits help protect the general public from those who engage in risky, unprotected sex by holding them responsible for their behavior. In a 2012 lawsuit that became known as the "eHarmony case," for instance, an unnamed 49-year-old woman sued a man off the dating site for negligence and battery after he infected her with herpes. Her lawyer Randall Vogt described her as a "heroine" holding a "dangerous" man responsible for his actions, and sending a message that people needed to be held accountable for their actions.

Some cynics view herpes lawsuits differently. After all, the rewards for plaintiff can be vast—especially since many defendants will settle to avoid embarrassing court proceedings. "Assuming a fellow has money, damages have been substantial," Jaroslawicz says. He has previously won seven-figure sums on behalf of his clients. These suits can also be lucrative for the lawyers who take on such cases. In California, where the Usher suit is filed, civil rights attorney fees can legitimately exceed their client's total monetary recovery.

In July, online gossip blog TMZ dug up Facebook posts from Quantasia Sharpton, one of Usher's complainants, saying she "need[ed] some money". Some social media users implied that Sharpton was simply trying get a cash award from Usher. "It's not a crime to be poor in America," Bloom, Sharpton's lawyer, told TMZ. "It's not a crime to be honest about the fact you need money. Most people need money."

The lawyers I spoke to emphasized that the consequences of receiving a herpes diagnosis can be profoundly psychologically damaging—so much so that the Center for Disease Control and Prevention doesn't recommend routine HSV-2 testing because "the diagnosis may have adverse psychological effects for some people."

And there's no doubt that contracting herpes—especially when you suffer repeat outbreaks—can be profoundly traumatizing. The plaintiff in the eHarmony suit, for instance, was diagnosed with clinical depression after suffering repeated and painful outbreaks of the disease. Jaroslawicz tells me that many of the women he's represented find the experience of having to repeatedly tell future sexual partners about their STD status profoundly stressful.

But not everyone agrees that being able to hold your ex-partners to account for infecting you is a socially beneficial practice. HIV advocates like Hanssens are concerned by the potential for revenge lawsuits. "There's quite a lot of evidence [of revenge lawsuits]," comments Hanssens. In her experience, cases are almost always brought by former spouses and partners.

"In one case from 1998 handled by the Supreme Judicial Court of Maine, for example, the plaintiff sued her husband for infecting her with HPV during their marriage, alleging that he had become infected while he has having an affair while they were still married, which she didn't know about at the time," she explains. "In fact, if you go way back to 1936, you will find civil cases such as one in which a woman sued her ex-lover for giving her pubic lice after he reneged on a promise to marry her. Of course the plaintiff never says that the case is about revenge; the facts of the case and its timing strongly suggest that."

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Advocates like Hanssens are also fearful that an increase in the number of suits promotes the wrong approach to sexual health—by turning STDs into issues for the courts, rather than the healthcare system alone. "It encourages the view that we should rely on our sexual partners for decisions about how to protect our sexual health," she says, "which is disempowering and dangerous since so many STIs, including HIV, are frequently transmitted by people who don't even know they are infected."

The upsurge in STD lawsuits can lead to increased stigma around common sexual diseases. "Perhaps the most significant negative consequence," Hanssens says, "is the extent to which these lawsuits—and the large money damages that sometimes are awarded—stigmatize STIs as something dirty and deadly when virtually all of them can be either prevented, treated, or managed."

And given that one in two sexually active Americans will contract a STD by age 25, the possibility of your ex-partner suing you for infecting them may not be as remote as it seems.