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beatrixy

HSV Canada and criminal law

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beatrixy

hey all,

I am waiting for my results (def sure they will be + I have a textbook outbreak :( ) and in the mean time wondering what the criminal code is in Canada on HSV transmission...

I realize that I can prob sue but what's the law on transmission without disclosure?

I've been trying to look it up online but all I've found is that someone who's HIV+ and has unprotected sex without disclosure can go to jail for a while...

where does the law stand on HSV though?

preferably post the link to this

thanks! :)

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curecomingverysoon

There is no law on HSV transmission in Canada as there is no duty to disclose -- disclosure is recommended not required as HSV is not a notifiable disease like HIV or syphilis.

In the US, there also hasn't been any success, as in Leleux and also in Bushnell's case. Some people have sued and most settle out of court.

The problem is that it is just too common as most people cannot say for absolute certainty from they contracted it.

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beatrixy

hmm...

what about litigation? do you know at all whether anyone has managed to successfully sue for HSV transmission without disclosure?

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curecomingverysoon

Sorry, I should have clarified. Transmitting HSV is not a crime under the Canadian criminal code as it is not a notifiable disease.

Civilly, there's no duty either. And in Canada there haven't been any successful cases.

But then again, there's always a first time for everything. But the burden of proof would be extremely difficult.

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beatrixy

i'm not sure how i feel about laws and litigation about this stuff... kinda feel like morals/ethics ought to be enough. but i guess i was wrong.

i do know how i feel about the cost of treatment though :mad:

thanks so much for your help! :)

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Sophie D.
There is no law on HSV transmission in Canada as there is no duty to disclose -- disclosure is recommended not required as HSV is not a notifiable disease like HIV or syphilis.

Do you know this to be true about Canadian law or are you guessing?

And I think you are mixing up your phrases.

At least in the US, HSV is not a "reportable" disease like HIV or syphilis, but that does not mean there is no law. There are HSV cases.

In the US, there also hasn't been any success, as in Leleux and also in Bushnell's case.

In the US there hasn't been any success at???

There are successful HSV cases in the US. check out the the other law threads.

Uh, what Leleux case are you referring to? Leleux v. US, 178 F.3d 750, got dismissed because you can't sue for an HSV transmission, deemed an intentional tort (battery) in that case, under the Federal tort claims act.

So don't try to sue for getting herpes if your facts are like the ones in Leleyux, under the Federal tort claims act.

Most people aren't suing under the FTCA, so this case does not apply to them.

Some people have sued and most settle out of court.

You can say this about any type of case.

The problem is that it is just too common as most people cannot say for absolute certainty from they contracted it.

There is no "absolute certainty" standard in the law. In US civil court the standard is usually "preponderance of the evidence" which is not absolute certainty.

Even in criminal court the standard is "beyond a reasonable doubt", not is it an absolute certainty that the defendant murdered those people.

If that was a standard then nobody would be convicted unless there was an eyewitness in every case.

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Sophie D.
hey all,

I am waiting for my results (def sure they will be + I have a textbook outbreak :( ) and in the mean time wondering what the criminal code is in Canada on HSV transmission...

I realize that I can prob sue but what's the law on transmission without disclosure?

I've been trying to look it up online but all I've found is that someone who's HIV+ and has unprotected sex without disclosure can go to jail for a while...

where does the law stand on HSV though?

preferably post the link to this

thanks! :)

I do not know anything about Canadian law. I do not know that anyone else on this board does either.

If I were you, I would search for a personal injury attorney in Canada and ask them. A lot of lawyers in the US do not charge for consultations, I have heard of ones that do, but I never talked to them.

Be careful of the naysayer lawyers. Just because it might be a difficult case does not mean that you do not have a case.

Also, what do you mean without disclosure?

They had sex with you and did not tell you they had HSV?

That is what all the cases are about.

Also, just because HSV is not specifically mentioned in the criminal code, does not mean that it is not a criminal offense.

For example, it is usually a crime to physically harm someone in the criminal code, but the code is not going to list every possible way to physically harm someone.

In one US state I found where it could be considered second degree assault to use a "dangerous weapon" to cause harm to someone.

In one of the cases, someone's fist was considered a dangerous weapon. So you could make the argument for someone's penis/vagina.

But, call a lawyer. better yet, call many lawyers and ask them.

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Katana

I was told by the nurses at my clinic that you aren't legally obligated to notify, unlike AIDS, HIV, Syphilis and Chlamydia.

If you look in the National Notifiable Diseases database, you'll indeed see that HSV is not there.

http://dsol-smed.phac-aspc.gc.ca/dsol-smed/ndis/list_e.html

It makes sense to me why it isn't notifiable, it's not in routine STD testing, it's simply a non-life threatening chronic skin condition that is transmitted orally or genitally and most people don't even know they have it.

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motorcyclemaintainance

If there was a strong legal basis for taking legal action against herpes carriers, then 50-90% of most populations would be allowed to sue each other. In fact, in Italy, the entire population could sue itself, because 93% of Italians carry herpes.

No doubt there have been successful cases, but does this really make any sense to anyone? In the case of HSV-2, between 27% to 33% of America needs to sue each other. For HSV-1, over 67% of the population needs to sue each other.

As for HSV transmission without disclosure, at least 90% of carriers transmit without disclosure, that's guaranteed. Why? Because 90% of carriers have no recognisable symptoms.

Is it fair to sue the symptomatic 10%? And how would you know they knew?

Let's get everyone tested and make the lawyers rich? You could stimulate the global economy with Italy's contribution to a class action suit alone.

Maybe we can sit a fragment of viral DNA on a slide in the witness box and cross examine it until it admits that it did it, and mother nature can pay the damages.

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tohealth
hey all, I am waiting for my results (def sure they will be + I have a textbook outbreak :( ) and in the mean time wondering what the criminal code is in Canada on HSV transmission...I realize that I can prob sue but what's the law on transmission without disclosure? I've been trying to look it up online but all I've found is that someone who's HIV+ and has unprotected sex without disclosure can go to jail for a while...where does the law stand on HSV though?

preferably post the link to this

thanks! :)

Canada gets its Tort Law from England, like we do in America. You should expect great similarity between the structures of your tort law and ours. I don’t know of Canadian case law but perhaps contacting personal injury attorneys there is the first start. Literally cold call them. http://www.hierosgamos.org/hg/db_lawfirms.asp?action=search&subcategory=Tort%7Cand%7CPersonal%7CInjury&country=Canada&getall=true

There is no law on HSV transmission in Canada as there is no duty to disclose -- disclosure is recommended not required as HSV is not a notifiable disease like HIV or syphilis. In the US, there also hasn't been any success, as in Leleux and also in Bushnell's case. Some people have sued and most settle out of court.The problem is that it is just too common as most people cannot say for absolute certainty from they contracted it.

I have no idea what this person is talking about, but they are incorrect. Whether or not something settles out of court is not always something we can actually know--particualrly if no formal case was ever filed but settled after a demand letter--because they are private settlements, let alone "know" for "most" cases. Even so, a settlement is generally preferable to a trial. "Absolute certainty" is not needed at all in these US HSV cases. There have been many successful US cases over HSV transmission--in fact no one has found a single unsuccessful one yet in the entire forum. The "Leleux myth" is CATHERINE E. LELEUX v. UNITED STATES OF AMERICA, 178 F.3d 750 (5th Cir. 1999), a case that was dismissed--not LOST-- at the trial court level simply because the plaintiff failed to state a cause of action. It had nothing to do with the merits of the case which easily could have been (and likely was) refiled against the perpetrator himself (the first attempt was against the perpetrator's employer as captioned here, the USA, who could not be liable in this case under what's known as Federal Rules of Civil Procedure Rule 12(B)(6)).

Also, what “Bushnell” case are you speaking of in the U.S. that supposedly failed?

Transmitting HSV is not a crime under the Canadian criminal code as it is not a notifiable disease.

What does being a “notifiable disease” have to do with Canadian criminal law? Isn’t the “notification” that which the doctor has to the public health agencies—all states must keep track of the movement in their populations of infectious diseases.

Civilly, there's no duty either. And in Canada there haven't been any successful cases.

Please state the names of the unsuccessful cases.

But the burden of proof would be extremely difficult.

Might you state the burden of proof?

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liedto
If there was a strong legal basis for taking legal action against herpes carriers, then 50-90% of most populations would be allowed to sue each other. In fact, in Italy, the entire population could sue itself, because 93% of Italians carry herpes.

No doubt there have been successful cases, but does this really make any sense to anyone? In the case of HSV-2, between 27% to 33% of America needs to sue each other. For HSV-1, over 67% of the population needs to sue each other.

As for HSV transmission without disclosure, at least 90% of carriers transmit without disclosure, that's guaranteed. Why? Because 90% of carriers have no recognisable symptoms.

Is it fair to sue the symptomatic 10%? And how would you know they knew?...

Absolutely. I think you are missing the point of intentionally putting someone in harm's way as opposed to an accident. Like say getting behind the wheel and driving after spending an hour with a bottle of 190 proof grain alcohol and then killing a pedestrian on the side of the road vs. driving the speed limit in the middle of July and, by some weird chance, hitting a patch of ice and losing control of your vehicle and killing the pedestrian.

How would you know? subpoena their medical records, If they have a symptomatic strain of HSV, chances are, they knew.

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restofmylife

For sure it is not the same but the Canadian laws are very loussy-goussy (as we'are very easy going people maybe?).

But, there might be a precedent that occured recently; a court ruled against a man and condemned him of murder for transmitting the HIV - the basis

The Crown said Aziga endangered the lives of 11 women by having unprotected sex with them and failing to disclose he had HIV.

Again, for sure it is HIV and not HSV but it will be interesting to see where it will lead us now that a Court recognized STD matters.

http://www.montrealgazette.com/news/guilty+murder/1466156/story.html

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Quin2
There is no law on HSV transmission in Canada as there is no duty to disclose -- disclosure is recommended not required as HSV is not a notifiable disease like HIV or syphilis.

In the US, there also hasn't been any success, as in Leleux and also in Bushnell's case. Some people have sued and most settle out of court.

I do not know anything about Canadian law. I do not know that anyone else on this board does either.

If I were you, I would search for a personal injury attorney...

Almost no one knows a thing about the law. Do you know why?

A very few people do know about the law, I am one, and curecomingverysoon is also one. I am not a lawyer.

This is not legal advice: Take one week and educate yourself in Law. You can find all the info you need on YouTube (more fun than reading), Wiki, the key legal documents of your country, attend your local court... and internet forums. Once you do so, you will see that curecomingverysoon gave a very clear answer. This will save you wasting money on a lawyer.

  • There is no Law against giving someone herpes, it is not a Crime.


  • There is no basis for a Civil Suit either.


  • If you have a Will of your own, then you might assess God's Law? This I think would not apply to you however, or to most people who reside in Canada, USSA, UK, Oz, etc

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talesofagirl
Almost no one knows a thing about the law. Do you know why?

A very few people do know about the law, I am one, and curecomingverysoon is also one. I am not a lawyer.

This is not legal advice: Take one week and educate yourself in Law. You can find all the info you need on YouTube (more fun than reading), Wiki, the key legal documents of your country, attend your local court... and internet forums. Once you do so, you will see that curecomingverysoon gave a very clear answer. This will save you wasting money on a lawyer.

  • There is no Law against giving someone herpes, it is not a Crime.


  • There is no basis for a Civil Suit either.


  • If you have a Will of your own, then you might assess God's Law? This I think would not apply to you however, or to most people who reside in Canada, USSA, UK, Oz, etc.

Clearly, you are not a lawyer.

There can be basis for a civil suit, depending on the circumstances. There have been successful civil suits. Not just settlements, jury awards, as well. If you had really done much research, you would've found that out. Some of them have even been discussed on this forum.

To anyone out there wanting to sue over herpes, see a LAWYER. A real lawyer, not someone on this board.

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GntiNh

I've just been reading a story regarding this.

In February a US jury awarded a Californian woman $6.75 million against a millionaire who was accused of infecting her with herpes.

However the millionaire's attorney has filed for a new trial and sanctions against her based on an affidavit from another man, which states that he gave her herpes at least 14 years before her relationship with the rich sugar daddy!

I let you know if I read any further developments.

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Captain Anonymous
Almost no one knows a thing about the law. Do you know why?

A very few people do know about the law, I am one, and curecomingverysoon is also one. I am not a lawyer.

This is not legal advice: Take one week and educate yourself in Law. You can find all the info you need on YouTube (more fun than reading), Wiki, the key legal documents of your country, attend your local court... and internet forums. Once you do so, you will see that curecomingverysoon gave a very clear answer. This will save you wasting money on a lawyer.

  • There is no Law against giving someone herpes, it is not a Crime.
  • There is no basis for a Civil Suit either.
  • If you have a Will of your own, then you might assess God's Law? This I think would not apply to you however, or to most people who reside in Canada, USSA, UK, Oz, etc.

You are assuming that there needs to be a specific HSV law in order for criminal action to take place, and that is incorrect.

For example, several AIDs positive people have been convicted of criminal offences in Canada for infecting partners without disclosing their condition. Such offenses have included aggrevated sexual assault, causing grevious bodily harm, etc. It's technically possible that some of these people will be charged with murder if their victims die before them.

I don't think there is anything legally preventing similar cases against HSV carriers, as Herpes is still something that causes "harm" to an individual on the basis that it is a life long infection. Granted, it may not kill people but that does not mean it's "harmless" in the eyes of the law.

That being said though, unlike HIV/AIDS there isn't a database for HSV carriers, nor is it even recorded in medical files for much of the positive population. Also, given HSV's huge prevalence it wouldn't be hard to establish reasonable doubt if such a case ever did make it to trial.

As for civil suits? There is definately a liability there, and unlike criminal courts verdicts are reached on the burden of proof, and not reasonable doubt which makes winning the case harder for the defendant.

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canadia

I am a canadian. I have a friend who is a recent law grad and is encouraging me to sue. I have no money however. He cannot take the case tho cuz he is not licensed in Alberta (te province where the incident occured) and he is too close to the case (i dated him early in the year and i reported this to him in fear of having it some other time to which he ran around London, England getting tested and worrying himself! he gave me his results to relieve me of my worry and I reported it to the guy who was with 2-3 days b4 my symptoms and that is when he confessed that he knew all about it and that he could have had it adn that his exwife had coldsores. just of note: he told me she b4hand that she could have given it to him but did not specify her symptoms so I took it as a maybe-maybenot and ruined my social life by backtracking my dating life)

Anyways, My friend said he would help me write a statement for the police (cuz a friend of mine said i'd have to report it first?) and drafting pleadings to initiate the lawsuit or at least that he would help me with a demand letter to the guy threatening to sue him to which he may be willing to settle effectively to "buy" my silence and avoid a public hearing that could also affect his current court case.

I'm not a bad person.. he just doesn't get it. And he dropped getting to know me cuz I was acting weird ever since that weekend. But yes I was scared for my future! And now I wil have a really tough time finding my husband and hopefully father of my children! I'm 33 already! And afraid I may not be able to have them when i finally do. I have had vaginal bleeding for 3 weeks and am on the pill and the incident happened 4 weeks ago.

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Adrius
He told me she b4hand that she could have given it to him but did not specify her symptoms so I took it as a maybe-maybenot and ruined my social life by backtracking my dating life)

Anyways, My friend said he would help me write a statement for the police (cuz a friend of mine said i'd have to report it first?) and drafting pleadings to initiate the lawsuit or at least that he would help me with a demand letter to the guy threatening to sue him to which he may be willing to settle effectively to "buy" my silence and avoid a public hearing that could also affect his current court case.

I'm sorry to hear this. As I said to you in another thread, it doesn't seem you have a case.

First of all, he disclosed, poorly but he disclosed. He told you he could have herpes and yet you took the risk. That's your responsibility, not his.

Secondly, people can contract herpes and then only many years later show symptoms. So you have no way of proving to the court that you didn't have herpes before knowing him, unless you got tested for herpes right before starting to see him, and even then he could argue it was a false negative.

Suing anyone will be extremely costly, you will end up poorer and at the end of the day, you will still have herpes.

... to initiate the lawsuit or at least that he would help me with a demand letter to the guy threatening to sue him to which he may be willing to settle effectively to "buy" my silence and avoid a public hearing that could also affect his current court case.

That sounds awfully close to extortion... do you really want to go there? Things can get ugly and he can be the one telling the whole world that you have herpes. After all, he can claim he got it from his wife so it's viewed as a "better" thing than getting it from just sleeping with someone.

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wastedhousewife

Please please everyone, if you need legal advice, speak to a licensed attorney - not a message forum!

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helpiamconfused2

Good advice but remember unless you can get one yo take your case on a contingency basis you may waste a lot of money.

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canadia
First of all, he disclosed, poorly but he disclosed. He told you he could have herpes and yet you took the risk. That's your responsibility, not his.

He happened to disclose this 2 weeks after we slept together.

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sothissucks

Ok a lot of ppl talking without actually knowing... Seems to be common on the message boards anywhere you go.

First of all the 'burden of proof' always lies with the Crown (ie police side) except in special cases. Two examples of reverse onus crimes would be (reverse onus= burden of proof on the accused):

-Refusal to provide a breath/ASD sample. If you refuse to provide a lawful sample of your breath after the breath demand has been given you have to prove in court you weren't under the influence at the time (pretty much have to go to a hospital right after and have blood samples taken)- good luck.

-Breach of anything (CSO/probation/undertaking etc). Self explanatory.

So now that that is covered....

Passing on herpes is not specially dealt with in the Criminal Code of Canada (hereafter referred to as CCC) and is not considered to be up to aggravated assault standard (passing on HIV/AIDS is considered Agg assault).

HOWEVER

It is included in the charge 'criminal negligence causing bodily harm' in the CCC. Although not mentioned specifically ANYWHERE in the CCC this charge has been successfully prosecuted against people passing herpes on without disclosure.

It isn't common practice to charge however and there aren't many cases so you may find police reluctant to charge due to a lack of education/knowledge in this area.

The same can be said for Crown.

Link to newspaper article which deals with this:

http://www.thestar.com/news/crime/article/1050142--herpes-charges-law-run-amok

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