Genital herpes and five rogue states: an axis of intolerance?

This is the story of genital herpes and five rogue states. Apple-pie and mom states. But rogue all the same.

It’s the story of how California, Oklahoma, Louisiana, Alabama and, yes, even New York, have laws on their books that make it illegal for someone with genital herpes to have sex… ever. Or even to get married.

So grab some moral high ground, sit back and read all about this tragic state of affairs.

Rogue State #1: California

Live in California? Or visit it sometimes? Well, if you get lucky there, you could be fined for it.

California’s “Health & Safety Code” states, in § 120600, that anyone “who exposes any person to or infects any person with any venereal disease … is guilty of a misdemeanour”.

Sorry?

“Exposes to”? That would cover just about every time you have sex, with or without condoms, with or without Valtrex.

“Is guilty”? That means every time. It’s no defence if you tell your partner beforehand and he or she readily accepts to take the risk.

Let’s look at how this might play out in the real world. You’re a woman, say, who starts dating a guy in Los Angeles. After a few dates, you tell him you have HSV. He says: “No big deal”. You have sex. Congratulations, you’ve committed a misdemeanour.

So the principle of it all doesn’t shock you? Okay then, let’s look at concrete repercussions.

Let’s say the next day, the guy panics. He changes his mind. “Oh my God”, he whines. “Oh my God, what have I done?” There are whimps like that out there. He lays a complaint. You’re prosecuted and fined. Oh, and you’re a registered sex offender.

Or let’s take another scenario. You’re ex-boyfriend is the jealous type. He’d do anything to spoil your new relationship. He narks and tells the cops that someone with genital herpes is running around having… oh my God… sex!. You’re hauled up for a misdemeanour (I mean, the public needs protecting!) and, guess what? Because you partner knew about your condition and yet still had sex with you, he goes down for “aiding and abetting” a misdemeanour!

It’s a crying shame.

Don’t agree with my analysis of the Health & Safety Code? Think maybe I’m stretching the definition of “exposes to”? Well, it looks like some of California’s legislators had the same doubts. So they added a few more provisions, just to make sure. According to another part of § 120600, anyone “infected with a venereal disease in an infectious state who knows of the condition and who … has sexual intercourse, is guilty of a misdemeanour”.

What d’ya know? Genital herpes is a “venereal disease” and, what with asymptomatic shedding and all, a smart lawyer could prove you were more or less constantly “in an infectious state”. If he does, then you’re committing a misdemeanour, every time you have sex.

So well done California. You’re one of the most progressive states in the world, except when it comes to the rights of people who are unfortunate enough to have contracted a disease that already causes them a significant amount of stress.

Rogue State #2: Oklahoma

Okay, so you decide not to live in California. What about somewhere further east, like… Oklahoma? Well, unfortunately, it’s even worse there. Misdemeanours? Huh! They’re for wimps. Oklahoma much prefers felonies!

Title 63, § 1-519, of Oklahoma’s Statute books (delicately entitled “Diseased persons – Marriage or Sexual Intercourse”) states that it is a felony for any infected person “to expose any other person by the act of copulation or sexual intercourse to … venereal disease or to liability to contract the same”.

A felony! That means you could go to prison! Even if the person you had sex with knew of your condition!

But that’s not all. Oh no. Check this out:

“It shall be unlawful and a felony for any person, after becoming an infected person and before being discharged and pronounced cured by a physician in writing, to marry any other person, or to expose any other person by the act of copulation or sexual intercourse to such venereal disease or to liability to contract the same”.

Are you kidding me? We know that people with genital herpes can’t be pronounced “cured”. So when they get married in Oklahoma, they commit a felony? Jeeze Louise!

This law, by the way, was considered in a tort case called Lockhart v. Loosen in 1997, where the judge dispelled any doubts about the meaning. He said: “The statute does not impose upon the infected person a duty to communicate the fact of their contagion to their partners or to third parties. It requires them not to engage in sexual intercourse while their condition is infectious.” Which, for genital herpes, is essentially, the rest of your life.

Oklahoma, you need to sort this out.

Rogue State #3: Louisiana

Right, so you decide not to live in Oklahoma, either. What about heading south, to Louisiana?

Oops. Louisiana’s Revised Statutes have a § 40:1062 which declares that it is “unlawful for any person to inoculate or infect another person in any manner with a venereal disease or to do anything that will expose another to … a venereal disease”.

Oh man! Let’s try Alabama.

Rogue State #4: Alabama

Alabama’s Criminal Code of 1975 has a § 22-11-21(c) which states: “Any person afflicted with a sexually transmitted disease who shall knowingly transmit, or assume the risk of transmitting, or do any act which will probably or likely transmit such disease to another person shall be guilty of a Class C misdemeanor.”

Dammit! Where can a person with genital herpes go to have sex with a fully informed partner? Maybe New York?

Rogue State #5: New York

Well, just in case you’re a New Yorker who thinks this could all only happen out west or down south, you should look up New York Public Health Law Section 2307:

“Any person who, knowing himself or herself to be infected with an infectious venereal disease, has sexual intercourse with another, shall be guilty of a misdemeanor”.

Nice one, New York! Committed couples all over the state, where one or other has genital herpes, are committing misdemeanours every day.

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