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W filed for divorce and included in her complaint were four separate counts for personal injury alleging that H, transmitted genital herpes to her during their marriage. P alleges that D continued to have sexual relations with her even after discovering that he had herpes, the result of an extramarital relationship. D motioned for summary judgment on the personal injury counts as sexual intercourse between spouses is by its very nature an act which falls within the scope of a marital or nuptial privilege, and therefore his conduct should be shielded from liability. The judge denied the motion. D appealed.

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