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Unprotected Sex Is Not Willful and Malicious Act For Purposes of Non-Dischargeability

throwing-a-punch-thumb.jpgIn the case of Cragen v. Maxwell the plaintiff (Cragen) believed he contracted a sexually transmitted disease from debtor (Maxwell) and threatened to sue her. To avoid suit, Maxwell agreed to pay Cragen $35,000. She signed a promissory note to which the plaintiff agreed to release her from any claims sustained by or resulting from contracting a sexually transmitted disease from Maxwell.

11 USC 523(a)(6) provides that debts for willful and malicious injury by the debtor to another can't be discharged in bankruptcy.

Pursuant to Section 523(a)(6), after Maxwell filed for Chapter 7 protection, Cragen filed a complaint alleging his claim was nondischargeable.

He alleged that Maxwell willfully and intentionally exposed him to human papilloma virus by engaging in unprotected sexual intercourse with him without informing him of her diagnosis. Maxwell denied having a past diagnosis and argued that her actions did not rise to the level of willful and maliciousness.

The court granted the debtor's motion for summary judgment. "Given the insidious and asymptomatic nature of HPV, neither the parties nor the Court will ever know the genesis of this disease as it relates to the parties", the court said. As stated by the debtor's expert, "it is virtually impossible to trace the source of HPV." Thus while Cragen was convinced that he had contracted the virus from Maxwell, the court wasn't.

"Irrespectively, the record is devoid of any fact which tends to show that Debtor acted with the requisite willfulness to cause harm to Plaintiff. Debtor and Plaintiff's relationship ended shortly after Plaintiff became aware of his diagnosis. The facts do not indicate that Debtor engaged in a romantic relationship with Plaintiff with the intent of causing Plaintiff to contract HPV. Nor does Plaintiff allege such willfulness," the court said. The same reasoning indicated that Maxwell did not act maliciously.

The Law Offices of James V. Sansone is located in Santa Rosa, California and serves clients with theirbankruptcy needs throughout the North Bay area of California, including Sonoma County, Mendocino County, Lake County, Santa Rosa, Napa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport and Kelseyville.

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