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If my boyfriend cheated on me with a girl who had herpes, but neither of us caught it, can I sue her for civil sexual battery?

Los Angeles, CA |

I was dating and living with this guy for several months. He had sex with this girl who I knew had herpes. He didn't know. Well I found out. Of course I was upset, but so was he because she never told him she had herpes. We've both been tested and thankfully don't have herpes. This is the THIRD TIME this slut has thrown herself at a guy I'm dating and I want to make her pay. The cops won't get involved since no one was infected, but the risk is their and I suffer emotional distress every time I learn of it and worry that I'm infected. Do I or my boyfriend have a civil claim of sexual battery against this slutty bag of viruses for failure to disclose her communicable disease? This isn't a one-time thing, she's one of those girls who is attracted to "taken men" and I'm sick of it!!!

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Attorney answers 3

Best Answer

You have several hurdles you would have to overcome in order to prevail against a motion for summary judgment in a civil action for the tort of assault or battery.

1) you have to prove that she knows she had a sexually transmitted disease at the time of the sexual intercourse. This is not as easy as I may sound. You will not be able to rely upon "everyone knows this" evidence. You would have to produce diagnostic evidence showing she has knowledge.

2) you have a problem with damages. Every tort has to be proved with damages. While assault can be established without some physical injury (being apprehensive of an immediate offensive or harmful touching), fearing an infection from a transmitted disease will be difficult to use. Especially since your boyfriend was not aware of her alleged condition at the time of intercourse. Damages for Battery would be easier to establish, but again, without a transmission of the disease, his is problematic.

Contact a local personal injury lawyer for more information. Good luck.


My colleague's analysis is good but you have no chance against the other young woman. If anyone would have given you herpes it is your boyfriend. In any event, no damages no suit even if you found a legal theory that works.


Solve this and similar endless future problems by picking better men. Truth: when a man cheats on you it is not the moral or legal responsibility of the other woman.

My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

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