Charlie Sheen made big headlines this week when he disclosed that he has been HIV positive for four years, and some of the ensuing discussion focused on whether he informed his partners and whether he knowingly engaged in any sexual activity without informing his partners (for the record he said he informed every partner when he received his diagnosis and has always made his status clear before engaging in sexual activity).
Charlie Sheen had been at the end of a marriage to Brooke Mueller, the mother of two of his children around the time of his contracting HIV, so we thought we would explore the consequences of transmitting an STD, particularly HIV, to a spouse in terms of a divorce or post-divorce proceeding.
In Missouri, as in most states, courts start with the premise that marital property will be divided equally, but the court can make an unequal distribution based on marital misconduct. So, while affairs have become so commonplace (unfortunately) that courts do not usually punish a cheating spouse, egregious misconduct often results in an unequal distribution. If Charlie Sheen had engaged in sexual activity with his wife knowing of his HIV status but not disclosing it, he would be guilty of a felony offense and a court would have grounds for a very unequal distribution of property.
Suppose, however, Charlie Sheen transmits it unknowingly after having sex with a prostitute? In that case, the reckless behavior of having unprotected sex with a prostitute would also qualify as egregious misconduct and warrant an unequal distribution. What if instead of HIV the disease transmitted had been herpes? While not as life-threatening, herpes does not go away and carries a stigma, so a court could still consider that as a basis for unequal distribution of property.
What if Charlie Sheen did have unprotected sex with his spouse, having but not knowing he had contracted HIV, but the spouse does not test positive for HIV? Does that change the outcome for unequal distribution? Not entirely. Because the spouse had been put at risk, and because HIV can take six months or more to manifest, the spouse will have a period of significant anxiety about contracting HIV, and this fear has been the basis for unequal distribution.
What if the divorce is final before Charlie Sheen finds out his HIV status? Can the spouse go back to court? Property divisions are final judgments that may be revisited only upon showing of fraud or mistake. Unless Charlie Sheen knowingly withheld his status at the time of the entry of judgment, the court would not have a basis to reopen the distribution. Could the spouse sue for damages outside of family court? Yes. Most states have abandoned spousal immunity and allow spouses and former spouses to sue for tortious conduct, in this case intentional or negligent infliction of emotional distress (depending upon what Charlie Sheen knew at the time of unprotected activity). Some states also allow civil suits based on statutes giving rise to claims for knowingly exposing an individual to HIV.
Hopefully, Charlie Sheen did not put his former spouse at risk; given his celebrity status, we will certainly find out.
If you have questions about HIV or STD and divorce, contact us – we can help.