Did you ever think you’d see the terms genital herpes and criminal law in the same sentence? Well, neither did I, until I met my former partner and experienced the frustration of not being able to ‘fix’ someone I truly cared for.
Frustration is the mother of revenge, and revenge is what I wanted for those first, difficult weeks. I racked my brains about ways to do it.
And that’s when it struck me: if a guy had made my former partner cry by punching her in the nose, he would have been hauled up on a charge of criminal assault; why, I thought, should it be any different for a guy who made her cry by giving her a painful, life-changing condition?
I had to find out, and find out I did – although I have calmed down since. Below you can see the results of my research on genital herpes and criminal law.
First, though, here’s how Genital Herpes and Criminal Law is structured:
1. It’s all about ‘consent’
2. ‘Consent’, genital herpes, and you
3. What the courts used to say
4. What the courts are saying now
5. The problem of proof
Right, you’re all set. Genital Herpes and Criminal Law begins here. Get comfortable, sit back, and learn!
Genital Herpes and Criminal Law: It’s all about ‘consent’
When you have sex with someone, you have to ‘consent’ to it. If, say, you willingly participate in a sexual activity, with full knowledge of what’s to be involved, you have usually ‘consented’ within the meaning of the law.
But what say you were forced to do it, or you were unconscious at the time, or it involved a surprise element of – I don’t know – violence? Then you have probably not ‘consented’ within the meaning of the law, and you become the victim of a crime (in this case, a sexual assault).
You consented = no crime
You did not consent = crime
Where does infection with genital herpes fit into this? As it turns out, somewhere in between these two extremes. And in many jurisdictions, the courts are still working out the answer! Genital herpes and criminal law is a complex mix.
Genital Herpes and Criminal Law: ‘Consent’, genital herpes, and you
The criminal courts have long recognised certain situations where, if a person fails to tell his or her sexual partner about some important fact, then the sexual partner cannot be said to have fully consented to the sexual intercourse. In these situations, a crime of sexual assault is committed.
One example is failure to inform your sexual partner of your true identity. In an Irish case called R v Dee from 1884, Mr Dee impersonated the husband of his victim and, in the darkness, was able to have sex with her without her noticing the deception (I think there is a Roald Dahl story based on this case!). Anyway, the court held that the woman, although she had willingly engaged in the sex, had not truly consented, and so a crime of sexual assault had been committed.
Another example is failure to inform your sexual partner of the true nature of what the two of you are doing. In an English case called R v Williams from 1923, a singing teacher convinced a girl he was coaching that he knew a technique that could improve her voice. Although the girl willingly allowed the teacher to perform the act in question on her, she did not realise that she was in fact being sexually abused. The court held that, despite her cooperation, the girl had not truly consented, and so a crime of sexual assault had been committed.
Genital Herpes and Criminal Law Note:
The names of a lot of criminal cases from countries such as the UK, Canada and Australia start with the letters “R v”. Why? These countries are members of the Commonwealth and so Queen Elizabeth II is their head of state. “R v” stands for “Regina versus”, regina being an old-fashioned word for “the Queen”.
The question for us, of course, is: do the courts consider having genital herpes to be an “important fact” that, like the examples above, must be explained to the sexual partner?
For you and me, the answer seems obvious – it’s a loud, long “YES!”. The person you caught it from was nice and all, but if you’d known they had genital herpes, well… you might still have wanted to have sex with them, but it would have probably been with a good condom and a course of suppressive therapy. The person you’re about to sleep with has genital herpes? I’d say that’s important! Very important!
Well, hold on to your judge’s wig, but the courts haven’t always given the same answer.
That’s right – the answer has changed over time.
Genital Herpes and Criminal Law: What the courts used to say
We live in a world today where the USA dominates many aspects of life: its films are shown around the world; its military is active in several countries; and, in the legal field, its Supreme Court makes decisions that are read by lawyers around the globe.
Well, from the middle of the 1800s to the middle of the 1900s, the country holding this privileged position was not the USA, but the United Kingdom, and in particular England (the United Kingdom at the time included England, Wales, Scotland and Ireland).
This was a time when it was English court decisions – not American – that had enormous influence throughout the English-speaking world, particularly in the Commonwealth countries such as Canada, Australia and New Zealand (whose highest court was at the time still based in London) but also to some degree in the – ahem – former colony of the United States.
For this reason, the history of genital herpes and criminal law starts in the English courts. Come and take a short trip with me back to Victorian England!
a) The mid-1800s
Sex in England in the mid-1800s was a pretty harmless activity. There were dangerous diseases about, but they were not running rampant through the population. Overall, it was a time when sex could be enjoyed in the way it was a century later in the 1960s and 1970s.
So this is the context in which English courts made their decisions regarding the criminal prosecution of the (few) people who did end up with a sexually transmitted disease, and who knowingly passed it on to unwitting victims.
What were those decisions? Well, according to the record books, English courts were at this time more than happy to convict people of the crime of sexual assault where they had sexual intercourse with someone without mentioning that they were carrying a sexually transmitted disease.
In a case from 1866, for example, a man was prosecuted for infecting his niece with an unspecified STD. That case was called R v Bennett, and in it the judge Justice Willes said:
“But although the girl may have consented to sleep, and therefore to have connexion with her uncle, yet, if she did not consent to the aggravated circumstances, i.e. connexion with a diseased man, and a fraud was committed on her, the prisoner’s act would be an assault by reason of such fraud. An assault is within the rule that fraud vitiates consent, and therefore, if the prisoner, knowing that he had a foul disease, induced his niece to sleep with him, intending to possess her, and infected her, she being ignorant of his condition, any consent, which she may have given, would be vitiated, and the prisoner would be guilty of an indecent assault.”
So, in the England of Dickens’ day, failure to inform your sexual partner of the fact that you had a sexually transmitted disease, was – like failure to tell someone your true identity or failure to tell someone the true nature of what you were doing – one of the situations where a court could decide that there has been a crime of sexual assault. If the person who gave you genital herpes had done it in England 150 years ago, they may have ended up in jail.
b) 1880s – 1990s
Remember how the AIDS epidemic hit the world at the end of the 1900s, putting an end to the “swinging sixties and seventies”? Well, a similar thing actually happened a hundred years earlier, only the epidemic wasn’t AIDS, it was syphilis. Syphilis may strike you as a mild inconvenience, but back then – before the discovery of anti-bacterial medicines such as penicillin – it was a terrifying, deadly disease. When the syphilis epidemic began in the late 1870s, sex became a much more serious affair.
Now here’s a coincidence – at about the same time the syphilis epidemic was sweeping through the country, the courts began to change their attitude to criminal prosecutions of people who transmitted STDs. We can’t be sure that the two phenomena are linked, but let’s be inventive and theorise that the following conversations may well have been had amongst the judges of the 1880s:
- “More and more people are catching venereal diseases. If we keep launching criminal prosecutions, the courts will be overwhelmed!”; and
- “If we keep trying to put away the people transmitting this disease, it will encourage people to have sex because they will assume ‘the streets are safe’. If we really want people to avoid catching this, surely it’s better that they be terrified of catching something.” Okay, this one is pretty warped, but it’s exactly the argument used by the people arguing against mass vaccination with the new HPV vaccines!
Anyway, whatever the reason, by the 1880s the courts had changed their attitude. They suddenly stopped prosecuting people for transmitting STDs. And the best known decision that signalled this change was a case from 1889 called R v Clarence.
Mr Clarence had sex with his wife when he knew, but she did not, that he was suffering from gonorrhoea. It was not suggested that he intended to cause her to become infected, and it was assumed that if she had known of the risk, she would not have had sexual intercourse with him. In the event, she became infected with gonorrhoea, and a criminal prosecution was launched against her husband. Mr Clarence was initially convicted, but then cleared on appeal. In other words, the court decided that he had not committed a crime.
In allowing the appeal, the judges in the Clarence case overruled the cases from the 1860s that had held that failure to inform a partner about a sexually transmitted disease could be considered a crime. For the judges, when it came to sex, only the withholding of facts that concerned the “nature of the act” or the “identity of the person engaging in the act” (as in the cases of Dee and Flattery) could be considered to justify a criminal prosecution. Fraudulently pretending not to have “venereal disease”, as the judges called it, was not an important fact.
How did the judges justify their decision? By arguing that once the law ventured beyond the type of act (i.e. sexual or non-sexual) and the identity of the perpetrator, the “floodgates would be opened”: men who promised a woman a fur coat in return for sexual intercourse, for example, and then failed to deliver, could find themselves in court (and that would never do!).
Genital Herpes and Criminal Law Note:
“Floodgates” is a favourite concept of judges, but also legislators and other decision-makers. It’s a handy concept they can use as an excuse not to do something, when they can’t find any real excuses!
Let’s hear one of the judges in his own words. Justice Stephen said:
“The question here is whether there is an assault. It is said [by the defence] there is none, because the woman consented, and to this it is replied [by the prosecution] that fraud vitiates consent and that the prisoner’s silence was a fraud […] Is the man’s concealment of the fact that he was infected such a fraud as vitiated the wife’s consent to his exercise of marital rights, and converted the act of connection into an assault? [...] The only sorts of fraud which so far destroy the effect of a woman’s consent as to convert a connection consented to in fact into a rape are frauds as to the nature of the act itself, or as to the identity of the person who does the act. There is abundant authority to show that such frauds as these vitiate consent both in the case of rape and in the case of indecent assault. [… In contrast] the woman’s consent here was as full and conscious as consent could be. It was not obtained by any fraud either as to the nature of the act or as to the identity of the agent. The injury done was done by a suppression of the truth. It appears to me to be an abuse of language to describe such an act as an assault.”
So, by this view, a prosecution for sexual assault could succeed if the perpetrator lied about who he was, or if he lied about what he was actually doing, but not if he lied about whether or not he had a sexually transmitted disease.
Now, either as a direct result of following the decision in the Clarence case, or as a result of coming to the same conclusions independently, this approach became the dominant view throughout the jurisdictions of the English-speaking world: England and Wales, New York, California, Canada, Australia, South Africa… In technical terms, for the judges in these jurisdictions, only the withholding of information “going to the nature of the act” or “the identity of the person engaging in the act” could lead to a criminal prosecution.
Sure, there were exceptions, for example in the jurisdiction of Delaware. In that State, there was a case in 1917 called State v Lankford (no Queen in Delaware!) where a man infected with syphilis slept with a woman unaware of his condition. The court held that the woman’s consent to sexual intercourse was rendered void by the man’s fraudulent concealment of the risk of infection with venereal disease, and convicted him of criminal assault.
And a few jurisdictions, such as Ohio, Florida, Louisiana, Oklahoma, California and Victoria in Australia, even introduced statutes that over-ruled this judge-made law, and declared that infecting someone with an STD was a crime whether or not the victim could be said to have consented (so-called strict liability statutes).
Genital Herpes and Criminal Law Note:
I feel a campaign coming on. Against California, Louisiana and Oklahoma… and all the jurisdictions where it is a CRIME to have sex when you have genital herpes, even where your partner consents! For more information, visit the section Genital Herpes and Discrimination.
But, by and large, the principle described in the Clarence case was the one adopted by most courts in the English-speaking world.
Genital Herpes and Criminal Law: What the courts are saying now
Until very recently, criminal courts continued to use the principle laid down in the Clarence case, refusing to prosecute those who transmitted genital herpes and other STDs.
But the tide has definitely started to turn.
By the late 1980s, the United States Court of Appeals for the Armed Forces had begun to have to deal with a number of cases of servicemen transmitting HIV to sexual partners who had been unaware of the perpetrator’s sero-positivity. And you know what? The Court of Appeals consistently allowed the prosecution of those servicemen. In 1990, for example, the Court heard the appeal of Serviceman Johnson. Johnson engaged in unprotected sex with a fellow soldier without revealing that he was HIV+ and the fellow soldier laid a complaint. The Court of Appeals allowed Johnson to be convicted of criminal assault, saying that although the victim had consented to unprotected intercourse, that consent was “uninformed”.
By the late 1990s, the courts in Canada were following suit, and although the cases they dealt with concerned HIV as well, the judges made it clear that the change of approach could apply to all sexually transmitted diseases including genital herpes. The most famous of these Canadian cases is R v Cuerrier (great to think the Canadians still report to Queen Elizabeth!), which made it to the Canadian Supreme Court in 1998.
Henry Cuerrier was HIV-positive. Even though he had been explicitly instructed, by a public health nurse, to inform all prospective sexual partners that he was HIV-positive and to use condoms every time he engaged in sexual intercourse, he had unprotected sexual relations with two women without informing them he was HIV-positive. Both women testified at trial that if they had known that Cuerrier was HIV-positive they would never have engaged in unprotected intercourse with him. At the original trial, the judge ordered Cuerrier’s acquittal, on the basis of the rule set forth in the English case of Clarence, i.e. the fact that deceit as to venereal disease does not void a partner’s consent to unprotected sex. The prosecution appealed to the Supreme Court of Canada.
The Supreme Court granted the prosecution’s appeal, quashing the acquittal and ordering a retrial. The Court held that it was no longer necessary, when examining whether there was consent in a sexual assault case, to consider whether the fact that the defendant hid from the victim related to “the nature and quality of the act”, as had been said in the Clarence decision. In his opinion, the judge Justice McLachlin said:
“It may be that criminalizing deceit as to sexually transmitted disease inducing consent may prevent some people from seeking testing and treatment, out of fear that if they learn about their disease they will be forced to choose between abstaining from unprotected sexual relations and becoming criminals. On the other hand, it may foster greater disclosure. The message that people must be honest about their communicable diseases is an important one. Conduct like that in the case at bar shocks the conscience and should permit of a criminal remedy. In addition, the proposed extension of the law is relatively narrow, catching only deceit as to venereal disease where it is established, beyond a reasonable doubt, that there was a high risk of infection and that the defendant knew or ought to have known that the fraud actually induced consent to unprotected sex.”
Wow! That Clarence decision is starting to take a few body blows! And it wasn’t long before the trend in the US and Canada crossed the Atlantic. In 2001, Britain saw its first successful prosecution for the sexual transmission of disease for over a century when Stephen Kelly was convicted, in the jurisdiction of Scotland, for transmitting HIV to a woman called Anne Craig.
Kelly met Ms Craig in 1994, six months after he had been diagnosed with HIV while serving a prison sentence. According to Ms Craig, she asked him if there was any reason other than the risk of pregnancy why they should not have unprotected sex, and he said no. In the relationship that followed, Ms Craig contracted HIV, and laid a complaint with police. In February 2001, Kelly was convicted at the High Court in Glasgow of the offence of recklessly causing injury to another, and for his troubles was sentenced to five years imprisonment.
A similar decision was soon to be made in the jurisdiction of England and Wales. The case was called R v Dica, and it took place in 2004.
Mr Dica was told in December 1995 that he was HIV positive. He met the first complainant in 1997, and met the second complainant in 2000. Dica had unprotected sex with both of them. According to the first complainant, Dica actually insisted that they should not use protection, telling her that she could not become pregnant because he had had a vasectomy. During intercourse, he would also say “Forgive me in the name of God”.
Dica was convicted at London Crown Court in 2003 of two offences of causing grievous bodily harm. The judge at the trial decided that the rule in the Clarence case was no longer valid in England and Wales, and Dica was sentenced to a total sentence of 8 years imprisonment. It had taken over a hundred years, but the English courts had finally come full circle.
When Dica’s conviction was upheld on appeal, the aptly named Lord Justice Judge made the following comment which is of particular interest to those with genital herpes and other “less serious” STDs:
“In the present case we are directly concerned with HIV. However we understand that there have been significant recent increases in the recorded rates of syphilis and gonorrhoea, and that a significant proportion of sexually active young women, and many young men, are infected with chlamydia. Accordingly, although we agreed to accept submissions from the Terence Higgins Trust, the George House Trust and the National AIDS Trust in relation to HIV, and some of the problems faced by those with this condition, for which we are grateful, the issues which arise in this appeal are not confined to that devastating disease.”
In England and Wales, then, it seems as though transmitting any STD – if you haven’t warned your partner – can be considered a criminal offence.
Genital Herpes and Criminal Law: The problem of proof
If you read the section ‘Examples of Prosecutions for Transmitting Genital Herpes‘, you’ll see that the only two criminal cases I could find both resulted in the defendant walking free. Is this surprising? Not really.
Judges in criminal cases are very demanding. After all, we’re not just talking about money here – the public prosecutor is asking the judge to consider sending someone to jail. That is a pretty big decision to make.
That’s why, in criminal cases, the prosecutor has to prove all the facts “beyond reasonable doubt”. He has to prove – beyond a reasonable doubt – that the defendant had herpes. He has to prove – beyond a reasonable doubt – that the defendant was the one who actually gave the victim herpes. In other words, the judge has to be 99% convinced the defendant is guilty. That’s no easy task.
By way of comparison, in tort cases (which you can read about in the section ‘Genital Herpes and Tort Law’), the plaintiff’s attorney has it easy – he only has to prove the facts “on the balance of probabilities”. That’s legal talk for “more likely than not” or, if you prefer numbers, “51% percent sure”. Remember the OJ Simpson trials? In the criminal trial, the prosecutor wasn’t able to get OJ sent to prison – because the judge wasn’t 99% sure that OJ did it. In the tort trial, though, using the same evidence, the plaintiff’s attorney was able get OJ to pay out millions of dollars in damages – it didn’t matter that the judge wasn’t 99% sure that OJ did it, it was enough that he was 51% sure.
Yes siree, the problem of proof is a big one in criminal prosecutions. If you ever consider laying a criminal complaint against someone for transmitting genital herpes, you may want to bear that in mind.