The assumption of risk defense and the sexual transmission of AIDS: a proposal for the application of comparative knowledge.

• Author: Kelly, Katherine A.

INTRODUCTION

Aristotle maintained that "[p]leasures impede wise thinking, ... for while [they] last no one can think of anything."(1) Although the absolute nature of Aristotle's statement is questionable, the premise behind it may help to explain the continued, rapid spread of Human Immunodeficiency Virus (HIV), the causative agent of Acquired Immune Deficiency Syndrome (AIDS), in an era of informed decision-making.(2) It is common knowledge that AIDS is a deadly, incurable disease transferred through sexual contact, yet individuals continue to engage in sexual activity with persons of unknown HIV status;(3) it is common knowledge that the spread of HIV can be greatly reduced through the use of condoms,(4) yet individuals partake in unprotected sexual activity. AIDS is the most feared and dreaded disease in our society,(5) yet individuals will not sacrifice pleasure to escape its wrath.(6)

Because educating individuals on the effects of AIDS has not proved sufficient to deter completely the spread of the disease, society must attempt to devise additional means of curtailing the pandemic. The legal system can help meet this challenge by creating deterrents to the spread of HIV. Effective legal deterrents are valuable not only to protect potential victims, but also to lessen the profound impact of the AIDS epidemic "on the legal, social, economic, and ethical institutions and structures of our society."(7)

To deter the spread of HIV, the legal system must discourage activities that contribute to disease transmission. Most importantly, the law must dissuade individuals from engaging in "`unprotected anal sex; unprotected vaginal sex; unprotected oral/genital and ora/anal sex; unprotected sex with many partners; [and from] having sex while drunk or high.'"(8) This Comment will examine how the law can most effectively allocate the burdens associated with the negligent sexual transmission of HIV. Drawing upon fundamental concepts of tort and contract law, this Comment seeks to balance the negligence cause of action and the assumption of risk defense in a manner that achieves an optimal degree of deterrence to HIV-transmitting sexual conduct.

To maximize tort law's deterrent effect, this Comment proposes a new formulation of the assumption of risk defense that correlates legal burdens with parties' relative degrees of knowledge of potential HIV-transmission risks. This comparative knowledge approach to apportioning legal responsibilities deters both infected and uninfected individuals(9) from risky conduct by placing the cost of the HIV transmission on the party better situated to know of the risk involved in the sexual encounter. The approach serves the deterrent goals of tort law more effectively than the current assumption of risk defense, retains a firm grounding in common-law policies and principles, and resolves many of the tensions and inconsistencies that pervade current tort law. The benefits of the proposal suggest the utility of the comparative knowledge formulation not only for curbing the spread of HIV, but also for apportioning risks in numerous other contexts where the assumption of risk doctrine has proven inadequate.

Part I of this Comment provides a brief description of the pathology of AIDS. Part II demonstrates the ability of the tort law to deter the spread of HIV and examines how present principles of the negligence cause of action and the assumption of risk defense apply to the tort of negligent sexual transmission of HIV. Part III presents the deficiencies of current assumption of risk doctrine. Finally, Part IV proposes a comparative knowledge analysis as a reformulation of present assumption of risk doctrine.

1. Acquired Immune Deficiency Syndrome:

   An Overview of the Disease

   AIDS, an incurable disease first identified in 1983,(10) is the last phase of infection by HIV.(11) HIV, also referred to as Human T-Lymphotropic Virus type III (HTLV III) and Lymphadenopathy-Associated Virus (LAV),(12) is transmitted through the passage of bodily fluid. The virus "has been found in blood, semen, vaginal fluids, breast milk, saliva, tears, urine, and cerebrospinal fluid. However, documented transmission has occurred only with blood, semen, vaginal fluids and breast milk."(13) Although the sharing of hypodermic needles among drug users is a significant contributor to the spread of the virus, the most common means of transferring the disease is through sexual contact.(14)

   Once a victim is infected with HIV she(15) may experience flu-like symptoms.(16) Soon thereafter, she will become asymptomatic and will not experience any symptoms that might lead her to believe she is infected with HIV.(17) The infected individual will remain asymptomatic for an average of ten years.(18) After such time, she will develop AIDS.(19)

   It is now sufficiently clear that all HIV-infected individuals will develop AIDS;(20) when they do, they are expected to die within two years.(21) They do not, however, die from HIV itself. The effect of the virus is to impair the body's immune system by attacking white blood cells. When an HIV-infected person's [CD4.sup.+] count(22) falls below 200, she is considered to have AIDS.(23) At this point, her body will generally be unable to defend against disease. Opportunistic infections - infections that are "capable of causing disease only in a host whose resistance is lowered"(24) - will invade the body and induce death.

   Once HIV has entered the body, there is no means of preventing the onset of AIDS;(25) nor is there any immunization to prevent the initial spread of the Virus.(26) The virus, however, is detectable. When a person is infected with HIV, her body starts to produce antibodies to fight the virus. These antibodies can be detected within one to six months of a person's exposure to HIV.(27) Although the antibodies are not useful to fend off the virus,(28) they are nonetheless valuable because their detection allows individuals to learn of their HIV status. Once an individual is informed of her positive HIV status, she can help reduce the spread of HIV by avoiding high-risk activities.(29)

2. Tort Law's Deterrent Effect

   1. Principles of Deterrence in Tort Law

      1. Traditional Principles of Deterrence

         As leading tort scholars have noted,

         The "prophylactic" factor of preventing future harm has been quite important in the field of torts.... When the decisions of the courts become known, and defendants realize that they may be held liable, there is of course a strong incentive to prevent the occurrence of the harm. Not infrequently one reason for imposing liability is the deliberate purpose of providing that incentive.(30)

         In essence, "[t]ort law is the mechanism this society uses to discourage individuals from subjecting others to unreasonable risks"(31) - risks that effect socially undesirable results. An underlying premise of the tort system is that individuals will become informed of the legal ramifications of their actions and will modify their behavior accordingly.(32) Although some commentators have attempted to refute this assumption,(33) there are theories of human behavior that support assertions of tort law's deterrent effect.(34)

         In the context of AIDS, society is concerned with preventing sexual episodes in which HIV is transferred.(35) Society's concerns are not merely paternalistic, but rather reflect an awareness that the spread of HIV will affect future sexual partners and will act to drain our national resources.(36) The proposal advocated in this Comment is designed to allocate civil liability so as to deter the transmission of HIV and to minimize the attendant individual and societal costs. The proposal does not purport to guarantee absolute deterrence on the part of any individual. Rather, it adds a marginal disincentive to engaging in risky behavior which, when applied to numerous actors, will in the aggregate reduce the frequency of unreasonably risky conduct.

         Although it is nearly impossible to quantify the additional hesitancy that civil liability can induce, even small marginal disincentives can confer tremendous benefits. Because the disease spreads exponentially,(37) deterring one risky sexual encounter can translate into multiple prevented transmissions. In a pandemic that afflicted eighty thousand people in the past year alone,(38) even a five percent decrease in the rate of infection would translate into thousands of lives saved. The following discussion identifies conditions that are necessary for the law to exert a deterrent influence on individual behavior.

      2. Cases Brought to Trial

         Courts cannot adjudicate cases that are not brought before them. If cases concerning the sexual transmission of HIV are not brought to trial, the courts will have no opportunity to articulate legal principles that aspire to influence behavior. There will also be no corresponding publicity to warn individuals about the potential consequences of their actions.(39) Given that very few lawsuits for the sexual transmission of HIV have been brought to date,(40) one might infer that courts will not have adequate opportunities to play a role in deterring individuals from spreading HIV.(41) There are, however, explanations for the current dearth of negligence actions in the AIDS arena that, once explored, imply that the number of AIDS-related suits will increase in the future.

         Before HIV testing became common,(42) individuals did not find out that they were infected with HIV until they had full-blown AIDS.(43) By that time, their life expectancy was reduced to approximately two years.(44) The HIV-infected individual's proximity to death presumably dampened her desire to sue. The seropositive plaintiff would have had to bear the socioeconomic costs associated with litigation, without assurance that she would reap the benefits of a favorable judgment. Even if she were able to win the suit, she would not be assured of collecting from the defendant, who himself would probably be in...