(dissenting). I respectfully dissent. Although I concur with the majority’s reasoning concerning the vitality of the wrongful-conduct rule in the context of the state’s adultery laws, as well as with its identification of the relative-culpability exception to this rule, ultimately I cannot agree that the exception should apply in the present circumstances. Because a broad reading of the relative-culpability exception would quickly consume the wrongful-conduct rule itself,* 11 do not believe that the Supreme Court intended in Orzel v Scott Drug Co, 449 Mich 550; 537 NW2d 208 (1995), that the exception be read in this manner. Wechsler v Wayne Co Rd Comm, 215 Mich App 579, 597, n 12; 546 NW2d 690 (1996); Richardson v Warren Consolidated School Dist, 197 Mich App 697, 702; 496 NW2d 380 (1992).
The only basis upon which the majority invokes the relative-culpability exception is that defendant *573engaged in sexual intercourse with plaintiff “while knowing that he had hpv, a sexually transmissible disease, and while not telling her about the risk she was taking.” Ante at 570. Because I take judicial notice that the transmission of sexual diseases is an extremely well-understood risk of engaging in sexual intercourse, especially sexual intercourse outside the marital relationship, I believe that plaintiff should have been aware of this risk. The risk involved was an entirely foreseeable one. It is inconceivable to me that any adult of reasonable intelligence and awareness, much less an employee of the finance department of a large corporate entity, could in August 1992 not have been utterly certain that such a risk attended the act of sexual intercourse. This is especially true with regard to sexual intercourse with a person lacking in marital fidelity as plaintiff knew defendant to be and where defendant’s sexual histoiy was largely unknown to plaintiff at the time of her affair.2 Therefore, I do not believe that the relative-culpability exception is properly invoked in this case.
Assuming that defendant was aware of his disease, he was nevertheless not certain that his disease *574would be transmitted to plaintiff; he was merely aware that there was a risk that it might be. Plaintiff, on the other hand, assuming that she was unaware of defendant’s disease, should have been also aware of the risk that a sexual disease could be communicated through her conduct. While it would be reasonable to conclude that defendant’s assessment of this risk, based upon the knowledge available to him, established the risk at a higher level than did plaintiff’s assessment, with the knowledge available to her, I do not believe that such fine calibrations of risk are what the Supreme Court intended in Orzel.
Plaintiff and defendant are equally culpable in terms of their violation of the law, MCL 750.30; MSA 28.219, which has given rise here to the wrongful-conduct analysis. Both are also equally “culpable” in their awareness of the physical health risks associated with sexual intercourse in the United States today, especially the additional risks associated with sexual intercourse outside marriage. That defendant’s assessment of this risk may have been better informed than plaintiff’s assessment is insufficient, in my judgment, to overcome the longstanding rule in Michigan that
“a person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party.” [Orzel, supra at 558, quoting 1A CJS, Actions, § 29, p 386.]
One need not indulge in high moraiism to conclude, notwithstanding the manifestly different sexual mores in 1992 than in 1846 or 1931, 1948 or 1970 when the adultery felony was enacted and reenacted, that plaintiff’s injury was a direct consequence of her engaging in the prohibited activity. And it was precisely the *575kind of harm that contemporary advocates of the felony’s maintenance might well posit as an important part of its rationale.3
There is no Michigan precedent for entertaining plaintiff’s claim in this case. To apply the relative-culpability exception to these facts will result in opening the courthouse to an entirely new class of dispute, one that will almost certainly impose heavily upon the resources of the judicial branch. Rather than opening these floodgates, I believe that the integrity of the wrongful-conduct rule should be maintained, at least in cases in which the injury suffered by the wrongfully acting plaintiff was not reasonably foreseeable. Therefore, I respectfully dissent.
A broad reading of the exception will ensure, under MCR 2.116(0X10), that the jury will consider virtually all cases where the wrongful-conduct rule is asserted. Rarely will it be the case that a plaintiff will be unable to establish under MCR 2.116(C)(10) that a material issue of fact exists concerning an alleged greater culpability in some respect on the part of the defendant than himself.
Further, although the majority asserts that the adultery offense remains subject to the wrongful-conduct rule, I am hard-pressed to understand in what types of cases it will continue, in fact, to serve as a bar to any type of lawsuit. In what type of case would it matter at all that the plaintiff was or was not engaged in adultery? Nevertheless, the majority’s adoption of the “significantly more culpable” standard may be useful in limiting the implications of its opinion.
Because of this additional element of risk, I believe that the causation requirement of the wrongful-conduct rule has also been established. Manning v Bishop of Marquette, 345 Mich 130, 136; 76 NW2d 75 (1956). Plaintiff’s injuries occurred in significant part as a result of her relationship with someone with whom she was not married and with regard to whom she necessarily possessed less information concerning sexual history. In other words, the adulterous nature of her relationship was not incidental or tangential to her injuries but arguably was closely connected. Had plaintiff incurred some nonsexually transmitted infectious disease during the course of her relationship with defendant, I would analyze this case differently, both because the connection between such disease and the adultery would be far more attenuated and because such a disease would not have been a foreseeable part of the risk that plaintiff incurred by her relationship with defendant.
While the initial justification for the felony was to guard the “sanctity of marriage,” People v Lipski, 328 Mich 194, 197; 43 NW2d 325 (1950), the public-health consequences of extramarital sexual relations have become an increasingly well-debated issue, particularly in light of the appearance of the aids virus. See, e.g., Risky Pleasure, American Medical News, May 2, 1994, p 15.