A Duty to Kiss and Tell? Examining the Uncomfortable Relationships Between Negligence and the Transmission of HPV, Timothy J. Hasken, 95 Iowa L. Rev. 985 (March 2010)

Research and Journal Articles

While tort law has held individuals liable for negligently spreading certain communicable disease since the late 19th century, most recent civil cases in this area has been focused on HIV and, to a lesser extent, herpes. Despite the sometimes near-hysterical reaction to HIV exposure cases, reflected in the increasingly-frequent reports of criminal prosecutions of HIV-positive individuals for sexual conduct, HPV is in fact the most common sexually transmitted infection in the United States.

There is little case law examining HPV's transmission in a negligence context. The author of this article, a law student at the time of publication, argues that HPV has many unique characteristics that make the virus's transmission "difficult to reconcile within the negligence framework." HPV's characteristics, he points out, make it difficult to determine when a duty should exist and raises questions as to whether courts should impose a duty to prevent transmission of the infection at all.
 
However, many of these "unique characteristics" arguably apply to HIV and its transmission, e.g., that it frequently is transmitted by individuals who have no idea they are infected; that the actual source of infection for those with multiple partners may be difficult or impossible to confirm. In any event, the author's discussion of HPV transmission, public health approaches and implications, and theories of negligent transmission provide interesting analogies, and arguments, for HIV anti-criminalization advocates.