Whilst it may be devastating to find out that your partner has been unfaithful and may have infected you with a sexually transmitted disease (“STD”), we must remember that not all STD’s are life threatening and serious. Many STD’s will cause you mild discomfort that may be cured within several days. Any medical damages that you may be able to recover, once you have managed to prove to the Court that it was your partner that factually infected you with an STD, will be dwarfed by the legal costs at arriving at that point.
In South Africa, no specific laws criminalise the non-disclosure, transmission or exposure of HIV or other sexually transmitted diseases. So, what is the legal position if your partner has given you an incurable STD and/or a life-threatening disease?
If you can prove that your partner knew or ought to have known that he or she is infected with an incurable or life threatening STD, and purposefully failed to inform you, or intentionally mislead you of such before proceeding to infect you with the STD, he or she may be held liable, not only for your civil law damages but criminally too. It is important to note that you must prove that your partner is guilty of intentionally infecting you or failing to disclose his or her condition to you. If your partner is unaware of his or her condition, then no action may be taken against him or her. Your partner will also be viewed as a victim if he or she is unaware of the STD.
As no specific laws criminalise the non-disclosure, transmission or exposure of HIV or other sexually transmitted diseases, our Courts have adopted a workaround by applying general criminal law principles to matters where a partner who is aware of his or her condition, who isn’t taking any medication and still engages in unprotected sex with his or her partner knowing full and well that his or her partner will become infected with an incurable STD or HIV. Cases such as these have been linked to successful attempted murder and assault with intent to cause grievous bodily harm and convictions.
Should you elect to make your and/or your partner’s STD status known publicly, as with a recent well know local celebrity, the laws regarding defamation will apply. If it’s a true statement and you can prove that it was your partner that infected you and/or your partner is factually infected with an STD then you may escape liability, however, if it is a false statement, your partner may sue you for the damages suffered to his or her good name and reputation.
At BBP Law, we are sensitive to everyone’s needs and shall respect your privacy during these rather emotional times. Contact us to help advise you or just be there for you during this time.