## Facts

- Plaintiff Judy Johnson (a pseudonym) and defendant Joe Jones (a pseudonym) met in spring 2010 through an online dating site for singles seeking long-term relationships.
- Defendant was a retired dentist who had genital herpes (HSV‑2), an incurable virus, and had known of his diagnosis since 1991.
- Defendant had experienced outbreaks and, despite his long-standing infection, never took antiviral medication or sought other medical treatment.
- Before meeting plaintiff, defendant consistently disclosed his genital herpes status to prospective sexual partners before sexual intercourse.
- Before her sexual encounter with defendant, plaintiff did not have genital herpes.
- Plaintiff asked defendant to wear a condom before they engaged in sexual activity, and defendant agreed.
- Despite that agreement, defendant initiated sexual contact and intercourse without a condom and without telling plaintiff that he carried HSV‑2.
- After the encounter, defendant disclosed that he had genital herpes.
- Plaintiff later contracted genital herpes and suffered severe physical pain and mental distress.
- Plaintiff sued defendant in Oregon circuit court asserting civil claims that included battery (and also negligence).
- At the close of evidence, defendant moved for a directed verdict on the battery claim, arguing plaintiff had not proved intent because she had not shown he intended to physically harm her by infecting her with herpes.
- The trial court denied the directed-verdict motion, the battery claim went to the jury, and the jury awarded plaintiff $900,000 plus medical expenses.
- Defendant appealed, challenging (among other things) the denial of the directed verdict on the battery claim.

## Issues

1. In a civil battery claim based on unprotected sexual intercourse without disclosure of a known HSV‑2 infection, must the plaintiff prove the defendant intended to infect or physically harm the plaintiff, or is it enough to prove the defendant intended to subject the plaintiff to an offensive contact?
2. Viewing the evidence in the light most favorable to plaintiff, was there evidence from which a jury could find the intent element of battery satisfied, making a directed verdict improper?

## Decision

- The Oregon Court of Appeals affirmed.
- The court held that the intent element for battery is satisfied by intent to subject another person to an offensive contact, even if the defendant did not intend the resulting physical harm (such as infection).
- The court concluded that, on the totality of the circumstances, there was evidence from which a reasonable jury could find that defendant acted with the required intent; therefore, the trial court correctly denied defendant’s motion for a directed verdict on the battery claim.

## Legal Principles

- Civil battery requires intent to cause a harmful or offensive contact; it does not require intent to cause a specific injury or intent to bring about the particular harm that occurred.
- “Offensive” contact focuses on contact that would offend a reasonable sense of personal dignity in the circumstances; sexual contact obtained without meaningful consent can qualify as offensive contact.
- A plaintiff need not prove that the defendant intended to transmit an STI to establish battery; the relevant mental state is intent to engage in the contact that the jury could find offensive given the lack of disclosure and the circumstances of consent.
- In reviewing denial of a directed verdict, the appellate court asks whether there was any evidence from which a jury could have found the facts necessary to support the verdict, viewing the evidence and all reasonable inferences in the light most favorable to the nonmoving party.

## Conclusion

Johnson v. Jones affirmed a battery judgment where the defendant, knowing he had HSV‑2, proceeded with unprotected sex without disclosure after agreeing to condom use; the court held the intent element turns on intending the offensive contact, not on intending to infect or physically harm the plaintiff, and the evidence was sufficient to let the jury decide intent.


Johnson v. Jones, 269 Or. App. 12 (2015)