Many states have recognized a cause of action for fraud during a marriage or relationship. Specifically, some states have recognized a plaintiff’s claim that they were induced to have sex with a defendant based upon the defendant’s representations as to his health or fertility. The states that permit this claim on the basis that the plaintiff did not actually consent to having sexual relations with the defendant. Moreover, the plaintiff may file a claim for assault or battery in addition filing a fraud claim.

Two examples of claims of fraud during a marriage:

When a plaintiff was induced to staying married to the defendant while he finished law school. Upon completion of law school, the defendant filed for divorce from the plaintiff. During the time that the defendant was attending law school he was having an affair. The plaintiff was successful in her claim for fraud during the marriage.

When a defendant misrepresented that she was on birth control, became pregnant, and had the plaintiff’s child, the plaintiff claimed fraud during a relationship. The plaintiff was unsuccessful due to public policy reasons. The plaintiff was not entitled to monetary damages as a result of the birth of his child.

Transmission of a Serious Communicable Disease

An individual that has a serious communicable disease such as HIV, AIDS or herpes has a duty to protect others with whom he may have a sexual encounter. There are two types of transmissions, negligent transmission and intentional transmission.

Negligent Transmission

In order for a plaintiff to be successful in her claim for negligent transmission of a serious communicable disease she must show:

• The defendant had a duty to avoid injuring her.
• The defendant breached his duty to avoid injuring her.
• The breach of the defendant’s duty was the proximate cause of her injury.
• The plaintiff suffered damages as a result of the injury.
• The defendant knew or had reason to know that he had a serious contagious disease and could transmit it to her.
• The plaintiff was exposed to the disease because of the defendant’s failure to take proper precautions.

Intentional Transmission

A plaintiff filing a claim for intentional transmission of a serious communicable disease may also file a claim for battery, fraud, and intentional infliction of emotional distress. If the plaintiff dies during a result of the transmission, her estate may file a wrongful death claim against the defendant.

The elements are the same as with negligent transmission of a serious communicable disease except that the transmission is done in an intentional manner. It must be shown that the defendant had the specific intent of transmitting the disease to the plaintiff.

With respect to a claim for intentional infliction of emotional distress, the plaintiff will be required to show that there was an objective basis for her fear of exposure to the disease and that her emotional distress was of a severe nature.

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