Sex outside of a marriage is bad enough but when someone brings something back from extramarital sex, it is really bad. Sadly, a sexually transmitted disease is usually the cherry on top of a horrible divorce sundae. It’s embarrassing at best and life-threatening at worst.
What options does a spouse have in an Illinois divorce when they have contracted a sexually transmitted disease from their spouse?
Grounds For Divorce
While contracting a sexually transmitted disease from a spouse seems like the biggest reason to get a divorce, a specific reason for the divorce is not required in order to secure an Illinois divorce.
The only thing an Illinois divorce litigant needs to allege is that “[i]rreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.” 750 ILCS 5/401(a)
So, how do you bring up the transmission of the sexually transmitted disease in an Illinois divorce court? In reality, you don’t compensatory justice for STDs in an Illinois divorce court.
Suing Someone For Giving You A Sexually Transmitted Disease In Illinois
“The Marriage Act confers only limited authority to make orders touching property division, maintenance of the parties, and the custody, care, and support of the parties’ children.”…“[T]he proper method of obtaining such relief would be a personal injury action against [the sexual disease transmitter]” In re Marriage of Foran, 587 NE 2d 570 – Ill: Appellate Court, 4th Dist. 1992
There are many courts for many different types of cases in Illinois. Domestic relations court handles divorces. Other courts handle torts. A tort is a “wrongful act [tha]t… may be either (1) a direct invasion of some legal right of the individual; (2) the infraction of some public duty by which special damage accrues to the individual; (3) the violation of some private obligation by which like damage accrues to the individual.“ Black’s Law Dictionary (10th ed. 2014)
A battery it a tort.“The Restatement (Second) of Torts provides that an actor commits a battery if:
“(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other directly or indirectly results.” (Restatement (Second) of Torts, § 13 (1965).)
Liability for battery emphasizes the plaintiff’s lack of consent to the touching.” Cohen v. Smith, 648 NE 2d 329 – Ill: Appellate Court, 5th Dist. 1995
The transmission of a sexually transmitted disease is clearly unwanted and occurs via a touching. Even though the touching in sex is usually consensual the plaintiff did not consent to getting a disease.
Intentionally giving someone a sexually transmitted disease is likely an intentional infliction of emotional distress.
In order to establish a claim for intentional infliction of emotional distress one must prove three elements. “First, the conduct involved must be truly extreme and outrageous. Second, the actor must either intend that his conduct inflict severe emotional distress, or know that there is at least a high probability that his conduct will cause severe emotional distress. Third, the conduct must in fact cause severe emotional distress.” McGrath v. Fahey, 126 Ill.2d 78, 127 Ill.Dec. 724, 533 N.E.2d 806 (1988),
If your spouse knew they had a sexually transmitted disease and they didn’t tell you (or worse, they assured you they didn’t have a sexually transmitted disease) that could be a fraudulent representation. “In order for a plaintiff to prevail on a claim of fraudulent misrepresentation, he or she must establish the following elements: (1) a false statement of material fact; (2) known or believed to be false by the person making it; (3) an intent to induce the plaintiff to act; (4) action by the plaintiff in justifiable reliance on the truth of the statement; and (5) damage to the plaintiff resulting from such reliance” Doe v. Dilling, 888 NE 2d 24 – Ill: Supreme Court 2008
Most likely, a spouse never wanted to give their spouse a sexually transmitted disease. Rather, the spouse was engaging in risky sexual behavior and exposing their spouse to that risk. That’s probably negligence.
“A complaint for negligence, to be legally sufficient, must set out facts that establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach.” Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill.2d 507, 525, 111 Ill.Dec. 944, 513 N.E.2d 387
Spouses owe a duty to each other as sexual partners. Transmitting a sexual disease is both a breach of that duty and an injury caused by that breach.
What About Privacy When You’re In Court And Talking About Your Sexually Transmitted Disease?
No one wants to declare that they were infected by a sexually transmitted disease on a court document. Every court document is accessible to the public in Illinois (unless the file is sealed).
“All records, dockets and books required by law to be kept by such clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, docket and books, and also to all papers on file in different clerks’ offices and shall have the right to take memoranda and abstracts thereof.” 750 ILCS 105/16(6)
To keep court documents public and respect the privacy of people who deserve it, the Illinois statute allows you to file under fictitious names (usually John Doe or Jane Doe).
“Upon application and for good cause shown the parties may appear under fictitious names.” 735 ILCS5/2 401(e)
Privacy also can be used by the accused sexual disease transmitter as a defense. After all, if you can’t prove the transmitter had the disease, you can’t logically infer where the disease came from.
Proof that the transmitter has the disease must come from a medical test administered by a doctor.
“No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient, except only…in all actions brought by or against the patient” 735 ILCS 5/8-802
If the sexual disease transmitter doesn’t allow their doctor to reveal their test results…you have no proof.
There is an exception to the physician-patient privilege in an Illinois divorce court. “[T]he physician-patient privilege does not apply to Rule 215 examinations.” Doe v. Weinzweig, 28 NE 3d 895 – Ill: Appellate Court, 1st Dist., 2nd Div. 2015
Rule 215 of the Illinois Supreme Court Rules reads: “In any action in which the physical or mental condition of a party or of a person in the party’s custody or legal control is in controversy, the court, upon notice and on motion made within a reasonable time before the trial, may order such party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition which is involved.”
Therefore, a new doctor on a court’s 215 instructions could perform the necessary tests and reveal the results to the court.
There’s a big, scary exception here: AIDS and divorce in Illinois. An HIV or AIDS test result will remain a secret in an Illinois divorce.
“No person may disclose or be compelled to disclose the identity of any person upon whom a test is performed, or the results of such a test in a manner which permits identification of the subject of the test” 410 ILCS 305/9”
Unfortunately, an HIV or AIDS diagnosis is so consequential that it will almost certainly affect a divorce in regards to child support, child custody, maintenance and/or property distribution.
Still, in Illinois, a party does not have to disclose their HIV/AIDS diagnosis unless they specifically waive their privacy right under the specific AIDS Confidentiality Act. “[A] petitioner [has not] waived the statutory privilege unless he expressly waived the Act’s privilege” In re Marriage of Bonneau, 294 Ill. App. 3d 720, 730 (Ill. App. Ct. 1998)
Is Giving Someone A Sexually Transmitted Disease A Crime In Illinois?
Giving someone a sexually transmitted disease is probably a crime in Illinois.
“A person commits battery if he or she knowingly without legal justification by any means (1) causes bodily harm to an individual” 720 ILCS 5/12-3(a)
Transmitting a sexual disease is almost certainly a bodily harm.
“Battery is a Class A misdemeanor” 720 ILCS 5/12-3(a)
“For a Class A misdemeanor…The sentence of imprisonment shall be a determinate sentence of less than one year.” 730 ILCS 5/5-4.5-55
In reality, that’s the maximum. Class A misdemeanors can also be punished by fines, probation and conditional discharge…and usually are. Few people are going to announce to the world that they got a sexually transmitted disease just so their former partner can get a $ 500 fine and community service.
If the sexual contact is of an assaulting nature, then the penalties are magnitudes more serious.
“A person commits criminal sexual assault if that person commits an act of sexual penetration and: (1) uses force or threat of force; [OR] (2) knows that the victim is unable to understand the
nature of the act or is unable to give knowing consent” 720 ILCS 5/11-1.20
If there is “bodily harm” criminal sexual assault becomes aggravated criminal sexual assault. Transmission of a sexually transmitted disease is bodily harm.
“”Bodily harm” means physical harm, and includes, but is not limited to, sexually transmitted disease, pregnancy, and impotence.” 720 ILCS 5/11-0.1
Aggravated sexual assault is a Class X felony in Illinois. For Class X felonies “[t]he sentence of imprisonment shall be…not less than 6 years and not more than 30 years.” 730 ILCS 5/5-4.5-25
Knowingly transmitting HIV is a class 2 felony. “A person commits criminal transmission of HIV when he or she, with the specific intent to commit the offense…engages in sexual activity with another without the use of a condom knowing that he or she is infected with HIV” 720 ILCS 5/12-5.01
How Should I Address Sexually Transmitted Diseases In My Illinois Divorce?
Just because you cannot sue your spouse in an Illinois divorce court for giving you a sexually transmitted disease does not mean that the transmission of a sexually transmitted disease cannot be brought up.
Obviously, everyone involved should be loath to put in writing that anyone has a sexually transmitted disease. Instead, the matter can be brought up orally in a private pretrial setting or discussed with a Guardian Ad Litem.
A sexually transmitted disease will have no impact on the financial aspects of the case as Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 503(d)
Acquiring a sexually transmitted disease mid-marriage is usually indicative of risky and possibly dangerous behavior.
This risky/dangerous behavior can be brought to the court’s attention to possibly limit parenting time. “After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development, the court shall enter orders as necessary to protect the child.” 750 ILCS 5/603.10(a)
Hopefully, a parent’s sexual history and proclivities have nothing to do at all with their children. If children can not be impacted, the court will not consider anyone’s sex life or their sex life’s consequences.
“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)
If you’re dealing with sexually transmitted disease and divorce…you’ve got a lot on your plate. Contact my Chicago, family law office for a confidential consultation with an experienced Chicago divorce lawyer.