More on the Martin case

Here is an article from ABAnet and here is an article from Findlaw on the Virginia Supreme Court's decision in the Martin case.

This Martin case still gives me a heart attack. There are many things that bother me about it, and one of them is that I never liked Zysk in the first place. I mean, with regard to the defense of illegality, it's one thing to say you can't sue for your share of the loot from a bank robbery, but shouldn't there be some kind of informed consent issue with respect to having sex with somebody who has herpes? Don't people get criminally prosecuted for spreading their diseases to unwitting sex partners? The whole point of the Martin case, I thought, is that the plaintiff would not have had sex with the guy if she had known. There ought to be a way to explain the causation in terms that would avoid the illegality, and leave the constitutional case for a criminal prosecution - when the Commonwealth would be a party and could defend itself.

I read that Ms. Jagdmann was asked in her confirmation hearings whether she would appeal Martin, but is there a thing the Commonwealth can do about it, at this late date? Ask to intervene and file for rehearing? Can anyone do that, even the Commonwealth?

Also, what really bugs me is that I thought the nub of Lawrence was that morality was not a good enough reason for criminalization of private, consensual sex acts. The words "disease" or "health" are nowhere to be found in the opinion, even though the amicus briefs were all over the "public health" issue. The idea that the public health rationale was found wanting in Lawrence strikes me as at best an inference and more accurately a mistake. The Virginia Supreme Court looked at Lawrence and read more into than I think is there, particularly since they concluded somehow that Lawrence vetoes rationalizations for sex laws that were not discussed in the opinion.