I respectfully dissent. Notwithstanding my sympathy with the law’s preference for prudence in sexual matters, as in general (Civ. Code, § 1714), I am unwilling in the context of this atypical case to join the majority in creating the prospect that an individual may be drawn into intrusive litigation, whether as a party, witness, or respondent to discovery requests, whenever a former partner, or that partner’s subsequent partner, contracts a sexually transmitted disease.
I do not question that one who negligently transmits human immunodeficiency virus (HIV) to another may be held liable in tort. On this point, I agree with all of my colleagues. I part company with the majority, however, in its creating the prospect of tort liability for future defendants who are alleged not actually to have known, but merely to have possessed “constructive knowledge,” they were infected. The majority’s vague and inconclusive treatment of the concept of constructive knowledge in my view demonstrates that its enterprise in this respect is not only premature—given this is a case in which actual knowledge is alleged (see maj. opn., ante, at p. 1183)—but also insufficiently grounded in California law and ill considered as a matter of public policy.
As Justice Moreno’s dissenting opinion ably demonstrates, a Californian’s medical privacy is protected by a complex of statutes, case law, and ethical principles. Our Legislature has given particular and heightened protection to the confidentiality of an individual’s HIV status. (See dis. opn. of Moreno, J., post, at pp. 1216-1219.) In this case, however, most of these protections are not in issue because the parties already have disclosed that they are HIV positive and each is accusing the other of transmitting the virus. Moreover, as the majority emphasizes, the alleged relationship between the parties was not limited to sexual encounters but, rather, was a marriage of spouses who contemplated sexual exclusivity. (Maj. opn., ante, at pp. 1183, 1187, 1193.) *1211John B. allegedly not only knew he was HIV positive (id. at p. 1183), but represented himself as disease free and repeatedly insisted that the parties forgo the use of condoms (id. at pp. 1187, 1193). Bridget B. allegedly would not have engaged in unprotected sex had she known John had been sexually active with other people prior to and during their marriage. (Id. at p. 1183.) I agree with the majority that in these circumstances and on such egregious facts Bridget potentially may state a cause of action against John for negligently transmitting HIV to her. Upon demonstrating “practical necessity,” moreover, she may obtain narrowly drawn discovery circumscribed by appropriate confidentiality measures. (See id. at pp. 1200-1202.)
I disagree, however, that Bridget may prevail on any such cause of action merely by showing that John had constructive knowledge he was HIV positive.1 As Justice Moreno correctly observes, no California statute or judicial decision establishes that mere constructive knowledge may support liability for negligent HIV transmission. (See dis. opn. of Moreno, J., post, at p. 1214.) Moreover, as counsel pointed out at oral argument, the record contains neither factual findings nor briefing upon the complex issues of AIDS policy this case implicates. Perhaps partly for this reason, the majority does not persuasively address these issues; I share in particular Justice Moreno’s concern that the majority fails to adequately consider the Legislature’s response to them. As he points out, the majority, for example, does not attempt to reconcile the discovery its opinion authorizes with Health and Safety Code section 120975, except to state John himself has waived that statute’s protection by placing his HIV status in issue. (See dis. opn. of Moreno, J., post, at p. 1218, citing maj. opn., ante, at p. 1198.)2
I disagree, moreover, with the majority’s assertion that allowing Bridget to discover John’s sexual history during the six-month period preceding his negative HIV test may yield evidence relevant to show John knew or “had *1212reason to know” he was infected. (See maj. opn., ante, at p. 1193.) As Bridget’s counsel acknowledged in oral argument, discovery that John had unprotected sex with other people during that time would reveal nothing pertinent; only if Bridget could discover the names and HIV status of John’s former sexual partners—information protected by statute—would she learn anything arguably relevant to her causes of action, even assuming application of a “reason to know” standard. Accordingly, I agree with Justice Moreno that Bridget is entitled only to discovery directed at whether and when John had actual knowledge he was HIV positive and not to discovery of John’s sexual history.
The majority as well as Justice Moreno in dissent cite numerous policy considerations they believe support their different conclusions. This divergence of views—all conjecture as far as this court knows—illustrates that complex public health, privacy, and other policy issues are involved in determining the scope of a tort for negligent transmission of HIV or acquired immune deficiency syndrome (AIDS). Given the complexity of such issues, this court is ill equipped and ill advised to venture into an area the Legislature already has extensively addressed.
For clarity, I emphasize that, contrary to the majority’s assertion, I have not proposed any categorical rule that a defendant spouse who behaves as defendant here is alleged to have behaved and who has “reason to know” he is infected with HTV “has no duty even to warn the other spouse.” (Maj. opn., ante, at p. 1197, fn. 9, citing this dissent.) Rather, I agree such a person may have a duty to warn a spouse if, in fact, he knows he is infected. But I remain unwilling on the present record, which does not permit full consideration of the public policy ramifications, to impose new warning duties on persons who do not know they are infected.
Health and Safety Code section 120975 provides in its entirety: “To protect the privacy of individuals who are the subject of blood testing for antibodies to human immunodeficiency virus (HIV), the following shall apply: [f] Except as provided in Section 1603.1 [disclosure to blood banks by health officials], 1603.3 [notification of blood donors], or 121022 [assuring access to anonymous testing while directing health care providers to report HIV cases consistently with federal funding requirements], no person shall be compelled in any state, county, city, or other local civil, criminal, administrative, legislative, or other proceedings to identify or provide identifying characteristics that would identify any individual who is the subject of a blood test to detect antibodies to HIV.”