A former Wichita woman is suing her ex-husband, claiming he gave her genital herpes after having one-night stands and affairs throughout their marriage.
The case has the potential to set precedent in Kansas law regarding a spouse’s legal obligation to tell a partner whether he or she has had unprotected sex outside of marriage.
Nancy Makepeace Fahey says in the lawsuit that her ex-husband, Michael Fahey, Bombardier’s vice president of Learjet Aircraft Sales, had extramarital sex with “upwards of 30 different women,” according to allegations she made in a court document.
“These women included subordinate employees at (Bombardier) Learjet, in addition to women, including prostitutes, in Southeast Asia and Singapore, Thailand and other locations,” according to the allegations.
Michael Fahey’s lawyer, James Walker of Triplett, Woolf & Garretson, would not comment for this story when reached by phone.
The case was originally filed in 2014 and went before a Sedgwick County District Court judge in September 2016. The judge dismissed the lawsuit, ruling that it did not state a valid claim under Kansas law.
But 67-year-old Nancy Fahey – who said she has spent nearly $100,000 on the case so far – is appealing to the Kansas Court of Appeals. She is asking for $1.1 million in damages for medical care and pain and suffering.
The case could answer the question of whether spouses have a duty to tell their partners they’re having unprotected sex outside of marriage and give an unknowing spouse legal recourse.
Kansas, like most states, has a law that makes it a felony to have sexual intercourse with the intent to expose someone to a life-threatening disease, like HIV/AIDS.
Herpes is not life-threatening, but about a dozen states across the country have laws that give spouses legal recourse in similar situations, said Nancy Fahey’s attorney, Jeffery Carmichael of Morris Laing.
“I want to enact a law that will prevent other people from going through what I’ve gone through ... that would protect women or men, that when you’re married and you get an STD, you have recourse,” Nancy Fahey said.
The Faheys were married in 1979, and the “one-night stands” began four or five years later, according to Michael Fahey’s deposition. The couple was living in Dubai when, on Christmas Day 2003, Nancy Fahey discovered an affair between her husband and a co-worker, according to her deposition. The couple separated shortly thereafter. However, they remained legally married until 2011 so that Nancy Fahey could remain on her husband’s health insurance as she fought breast cancer.
It wasn’t until 2013, when Nancy Fahey was getting ready to start an intimate relationship with a new partner, that she was tested and discovered she had herpes. According to court documents, she believes that symptoms she previously thought were urinary tract infections during her marriage were actually herpes and that she has been infected since 1995.
Later, Michael Fahey was tested and also found to have genital herpes, according to court documents.
In the lawsuit, Michael Fahey did not deny that he had sexual contact with multiple partners, many of whom were prostitutes. However, he denied that he was legally liable to Nancy Fahey because he had no duty to disclose his affairs to her. He said he did not test positive for herpes until 2014 and did not know until then that he carried the herpes virus, so he could not have intended to commit fraud, which is the legal basis for the lawsuit against him.
He also claims that the lawsuit was filed too late because Nancy had discovered an affair in 2003 and waited more than 10 years to file the lawsuit. He claims she had a sexual partner after they were separated and before she was tested for herpes.
Genital herpes is a sexually transmitted infection that can cause pain, itching and sores, according to the Mayo Clinic. While genital herpes is not life-threatening, there is no cure. It can be spread even if there aren’t visible sores.
“I have a PhD in herpes now,” Nancy Fahey said in an interview. She said she thoroughly researched the disease after it was diagnosed by her doctor and now takes a pill every day to prevent outbreaks.
“When I found out he did it to me, it was the ultimate betrayal,” she said. “This man traveled for six or seven weeks at a time on business, kiss me and the babies and the kids goodbye and go over there. And then he’s having sex with prostitutes. What’s with my marriage vow?
“When this was all happening, AIDS was a big thing. So I am so thankful that (herpes) is all he gave me and he didn’t give me AIDS,” she said. “It’s a horrible thing to say, but he could have brought home AIDS.”
‘Can of worms’
The lawsuit has included expert testimony on sexually transmitted diseases, sealed depositions of former sexual partners and records of medical tests.
“It poses a fundamental legal question as to a duty between spouses,” Carmichael said.
“As a spouse, you have the ability to affect the health of your spouse by your conduct,” Carmichael said. “By engaging in unprotected sex and not disclosing it to your spouse, you put them at risk. If you disclose it, then you have the option to either not have sex with that individual, to have protected sex with the individual or to get their walking papers and say ‘I’m done.’ ”
Adultery is against the law in Kansas and is considered a misdemeanor, although it’s rarely if ever prosecuted, Carmichael said.
In his ruling, District Court Judge Timothy Henderson, who has since resigned after losing a re-election bid, said the case presented “absolutely a fascinating legal issue.” He concluded that “this is a policy issue that should be left to the Kansas Legislature.”
“This primarily comes down to the legal question – the question of law as to whether there is a duty between spouses to reveal extramarital affairs involving unprotected sex,” the ruling says.
“In that regard, the Court tried to the best of its limited ability to think through the natural consequences of such a policy if the Court were to expand the law in Kansas to include such a duty. And the Court was struck by the fact that there is a multitude of negative behaviors that a spouse can do during the course of a marriage that can have an impact on the other spouse.”
Henderson went on to list risky behavior that could be included: a spouse with a secret gambling problem depleting a bank account or a spouse using dirty needles to fuel a drug addiction despite the risk of HIV.
Nancy Fahey acknowledged the legal issues raised by the case.
“It could open up a can of worms in Kansas,” she said.