Recent Development by Timothy S. Mehok
Catherine Leleux departed for boot camp on August 29, 1995, after having been recruited to join the United States Navy. Upon her arrival, she was given a physical examination and diagnosed with genital herpes. She brought suit against the United States, alleging that she contracted the disease from Petty Officer Paul Sistrunk, who worked with Leleux at the Naval Recruiting Office in Lafayette, Louisiana. Sistrunk began interacting with Leleux when he encouraged her to volunteer at the Naval Recruiting Office. Sistrunk took a personal interest in Leleux and eventually, with the help of Cecil Branch, another recruiter in the office, obtained a date with her. On their first date, Sistrunk purchased beer for Leleux until she became intoxicated. He then took her to Branch's vacant apartment where they had consensual sexual intercourse. Leleux and Sistrunk had intercourse two more times before she reported to boot camp. The last encounter also occurred at Branch's apartment, while Branch was in another room.
Leleux brought suit under the Federal Tort Claims Act (FTCA) against the United States to recover damages arising from her contraction of genital herpes. Specifically, she alleged that Sistrunk knew or should have known that he was infected with genital herpes, and that, in either case, the government was negligent in failing to prevent him from transmitting the disease to her. The district court dismissed the suit pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, concluding that Leleux's negligence claim arose out of a sexual battery and thus was precluded by 28 U.S.C. § 2680(h). The United States Court of Appeals for the Fifth Circuit affirmed the trial court's dismissal and held that: (1) the knowing concealment of a sexually-transmittable disease prior to consensual intercourse constitutes sexual battery for the purposes of § 2680(h); (2) where negligent conduct on the part of the government is not sufficiently distinct from a battery, the negligence is not subject to the government's waiver of sovereign immunity; and (3) Louisiana law does not create a duty on the part of employers to prevent their employees from transmitting genital herpes. Leleux v. United States, 178 F.3d 750, 755, 757-59 (5th Cir. 1999).
About the Author
Timothy S. Mehok.
Citation
75 Tul. L. Rev. 549 (2000)