Unprotected Sex Results in a $250,000 Nondischargeable Debt

December 7, 2018

Having unprotected sex when you know you have herpes can result in a nondischargeable debt of almost $250,000.

Two single adults began dating. One had recently divorced and knew he had herpes. He confessed to the woman that his former wife had two restraining orders against him. Rather than taking the admission as a warning, the woman saw the confession as a sign of honesty.

Before they had sex for the first time, the woman asked if there was anything she should worry about. The man said “no,” according the bankruptcy court’s fact-finding.

Having believed her partner was disease-free, the woman discovered months later that she had herpes. The man initially claimed he had contracted the disease from his former wife. Believing him once again, the woman continued dating the man, thinking they had a common bond from an incurable disease stemming from someone else’s misdeeds.

Later, the man admitted that his former wife was not to blame. The woman discontinued the relationship, and the man ended up in bankruptcy.

The woman filed a complaint contending that her damages from contracting herpes were nondischargeable under Sections 523(a)(2)(A) and 523(a)(6).

First, the bankruptcy judge decided whether the woman had a valid claim, and for how much.

The bankruptcy judge ruled that the woman had proven a claim under state law for fraud by clear and convincing evidence. The judge also held that she had a valid claim under state law for civil battery.

Turning to damages, the bankruptcy judge awarded almost $50,000 in compensatory damages, largely representing medication the woman will be taking for the remainder of her life. The judge also awarded almost $150,000 for pain and suffering, calculated as three times compensatory damages.

Finally, the bankruptcy judge awarded $50,000 in punitive damages, given the debtor’s willful and malicious conduct.

Next, the bankruptcy judge analyzed whether the damages were nondischargeable.

The damages were not nondischargeable under Section 523(a)(2)(A), which is applicable to “any debt” for “money [or] property” obtained by “false pretenses, a false representation, or actual fraud.”

Although the debtor had defrauded the woman, the bankruptcy judge ruled that subsection (a)(2)(A) does not apply to “obtain[ing] sex rather than money, property, services or credit.”

With regard to the claim for battery, the bankruptcy judge ruled that the damages were nondischargeable under Section 523(a)(6) for inflicting a “willful and malicious injury.”

The fraud claim was also nondischargeable under subsection (a)(6), although, the bankruptcy judge said, some courts have held that fraud claims are never nondischargeable under that subsection. Extrapolating from Husky International Electronics Inc. v. Ritz, 136 S. Ct. 1581 (2016), the bankruptcy judge concluded that subsection (a)(6) applies to injuries caused by fraud when the fraudulent conduct was willful and malicious.

We are withholding the citation of the case to protect the privacy of the parties. We note, however, that the names of the parties were not redacted from the public record.

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