Mixing genital herpes and jail is not a simple issue. I mean, if you were running a country, would you pass a law letting people who transmit genital herpes get thrown into prison? Maybe reading this will help you make up your mind.
Mixing genital herpes and jail time is more controversial than the mixing genital herpes and multi-million dollar payouts, because when we talk about jail, we’re not asking the State just to allow two people to sue each other, we’re actually asking the State to go to the trouble of prosecuting someone itself, and to use public money to do it.
Now, since HIV arrived on the scene, there’s been a lot of debate – in legislative chambers, court-rooms, journals and living rooms – about whether or not those who carry that particular virus should be punished if they transmit it to their sexual partner, or even just – through unprotected intercourse – expose their partner to the risk of contracting the disease. Although infection with HIV is a much more serious event than infection with HSV, many of the arguments raised in the HIV debate are pretty relevant in the case of genital herpes and, for that reason, I’ll be looking at them a bit later in this page.
Just one small note – I’m assuming here that the sexual contact that took place between the infected party and the ‘victim’ was consensual. I’m also assuming that the perpetrator knew he/she had herpes, and that the victim did not know this. Okay? Right, let’s go.
The case for punishment
If you’ve read the section ‘Can I Have Them Thrown in Jail?’, you’ll remember that, in a Scottish case called R v Kelly, a criminal prosecution for the transmission of HIV was successful. The offender, Mr Kelly, went to prison, and the victim, Ms Craig, tried to get on with her life.
After the verdict, Ms Craig’s lawyer was reported by the local newspapers to have said that the prison sentence “contains a warning that we should be cautious about our sexual health” and “should also be a deterrent to others not to act in the way Mr Kelly has done.”
Ms Craig herself was a little less enthusiastic, but still seemed pretty pleased at the decision: “I have no comment to make on the severity or leniency of the sentence, as it’s irrelevant to me. All I wanted was for the jury to hold Mr Kelly responsible for what has happened to me and I was delighted by its decision. Mr Kelly refused to accept responsibility for this offence, but the court did that for him. That was all that mattered to me.”
These statements suggest that criminal prosecution for the transmission of a serious STD – including perhaps genital herpes – does have several beneficial effects:
- one, for uninfected people, the publicity reminds them that sex can be risky;
- two, for victims who go to court and win, a conviction procures them some sense of emotional relief; and
- three, for infected people, the sentence handed down to the defendant deters them from doing what the defendant did (i.e. infecting other people).
Let’s take a closer look at these three potential benefits, one by one.
Trial publicity reminds uninfected people that sex can be risky
Real life stories have the capacity to grip people’s attention in a way that few other things can. We are all interested in what goes on in our neighbourhood, our city, our country – especially when it transgresses social norms. It’s the reason for the success of ‘Judge Judy’ and ‘Court TV’. It’s why we all watched O.J. Simpson and Michael Jackson on trial. It is simply human nature to want to know what the neighbours (especially the famous ones) are up to.
In this context, the prosecution of people who transmit STDs, including genital herpes, has the capacity to attract people’s attention in a highly effective way – perhaps much more effectively than through traditional information campaigns.
All the elements of great conversation are there: sex, betrayal, court-room drama. A newspaper story on the trial of a person accused of transmitting herpes to his or her partner is thus, in all likelihood, going to generate much more discussion than a similar sized public health advertisement advising people to protect themselves against HSV. The result of criminal prosecutions will thus be to enhance public awareness of the disease and, with it perhaps, to reduce the number of new cases.
Conviction procures the victim emotional relief
Generally speaking, human beings like closure. If they see an injustice, they like to see it righted. And they like to see a person responsible for causing harm being held accountable for his or her actions.
There are probably many reasons for this tendency. On a rational level, people may be wanting to ensure that society continues to function, because failure to punish crimes can create a state of anarchy. On a subconcious level, their brains may receive hormonal “rewards” either for settling a score (some scientists believe this explains the satisfaction some people take from revenge) or – if you accept that we all have a degree of obsessive-compulsive proclivity – for simply putting things “back where they should be”.
Whatever the answer, Ms Craig is unlikely to be alone when she expresses the satisfaction the conviction of her “agressor” procured:
“All I wanted was for the jury to hold Mr Kelly responsible for what has happened to me and I was delighted by its decision.”
This satisfaction is real and it may be unfair to deny it to people who unwittingly contract genital herpes.
Sentence deters infected people from putting others at risk
After the conviction of Mr Kelly in the Scottish case mentioned above, his former partner Ms Craig commented: “If the verdict saves one life from the misery I have been through then it will all have been worthwhile.”
This comment can be taken in two ways.
- It may refer to “lives saved” from future infection by Mr Kelly (the defendant is reformed); or
- It may refer to “lives saved” from future infection by other carriers of STDs (other people are deterred).
Let’s look at these two effects in relation to genital herpes.
a) The reform effect
People convicted of transmitting an STD such as genital herpes may go to prison or they may not. But, more importantly, they are likely – as part of their sentence – to be required to undergo counselling to ensure that they do not reoffend.
This counselling would of course go well beyond helping the perpetrator to learn to cope with being a carrier of HSV – it would aim to ensure that he or she understands why transmitting the condition to unwitting partners is unacceptable and, ultimately, against his or her own best interests.
This person is probably unlikely to seek out this type of counselling on his or her own. Recourse to the criminal courts thus offers the possibility to reduce reoffending and, consequently, to limit the spread of the disease.
b) The deterrence effect
The deterrence value of criminal penalties is a controversial subject – some say they do deter people from committing crimes, and others say they do not.
Of course, the extent of the controversy varies according to the activity being penalised (e.g. parking offences or murder) and, in particular, the punishment being considered (e.g. a simple fine or the death penalty).
Looking at the issue we are considering, it can be argued that, if appropriate punishment is chosen, then the existence of a criminal provision could indeed deter people from transmitting an STD such as genital herpes.
The US Presidential Commission on the Human Immunodeficiency Virus Epidemic appeared to think so. Sure, it was discussing HIV, but the same principles apply. In 1988, the Commission asked state legislatures to adopt criminal statutes on HIV infection that would provide “clear notice of socially unacceptable standards of behavior specific to the HIV epidemic, and tailor punishment to the specific crime of HIV transmission.”
It is unlikely that the Commission would have called for “clear notice of socially unacceptable standards of behavior” if it believed such notice was going to be totally ineffective in deterring the transmission of HIV. Otherwise, the new laws would all be a complete waste of time.
Several judges in Canada agree with the US Commission. In the case called R v Cuerrier (which you can read about in the section ‘Can I Have Them Thrown in Jail?’), four Canadian Supreme Court judges jointly declared:
“Where public health endeavours fail to provide adequate protection to individuals like the complainants, the criminal law can be effective. The criminal law has a role to play both in deterring those infected with HIV from putting the lives of others at risk and in protecting the public from irresponsible individuals who refuse to comply with public health orders to abstain from high-risk activities.”
So, let’s assume just for now that a criminal penalty WOULD deter people with HSV from infecting others. The question then is – what punishment is MOST LIKELY to deter people from transmitting genital herpes to their sexual partners?
Given that some such people seem to be too embarrassed or selfish to disclose their condition to the victims they sleep with, it may be that public identification as a carrier of herpes simplex virus would be highly effective (an “HSV offenders” list). The message from the criminal law would then be – tell your partners, or we’ll tell everyone.
This suggestion, of course, is not an answer – it is just an idea, and one which – I hope – might provoke discussion on this issue so that the most appropriate (and not just the most effective) punishment can be identified.
The case against punishment
Let’s keep assuming, as suggested above, that criminal prosecutions for the transmission of genital herpes do have SOME beneficial effects.
Does that mean that criminal prosecutions should actually be allowed? Aren’t there drawbacks as well?
If you read below, you’ll see there are indeed a few drawbacks, and that the issue of whether or not to allow criminal prosecution of genital herpes transmission may well be “too close to call”.
The benefits of punishment are less extensive than some would have us believe
Let’s examine more closely the three reasons set out above in favour of punishing people who transmit genital herpes.
First, it’s true that criminal trials are capable of producing eye-grabbing headlines in newspapers and on the television. But this ability to attract attention may in fact be a weakness in the fight against the spread of genital herpes, since over-exposure to an issue can encourage the public to switch off.
By way of illustration, take the United States. Experts generally say that 1,000,000 new cases of genital herpes are diagnosed there every year. Let us assume, generously, that half of those cases involve partners who were fully informed of the other partner’s sero-positivity – that leaves 500,000 people who were not. Let’s now assume that one in five of these uninformed victims lays a formal complaint and that 50% of those formal complaints make it to court – that’s 50,000 criminal court cases a year about herpes or, on average, about three a day for every State in the US.
It’s debatable whether a disease which is reported on every day in the court pages of your State newspaper will long maintain its shock-value for the public. Actually, public information campaigns are properly dosed because the authorities KNOW that too much exposure can render a subject “banal”.
In the fight against genital herpes, maybe less is more.
Second, the emotional relief that plaintiffs may experience when their “aggressor” is found guilty by a court may only be temporary. Actually, it may even be counterproductive in the long run.
Because, as much as revenge can satiate the intense pain immediately following an aggression, forgiveness can work even greater wonders in the months and years following. And before you dismiss this idea as something only religious groups recommend, take a look at the Truth and Reconciliation Tribunals set up by governments in South Africa and Rwanda.
Maybe, then, revenge isn’t all it’s made out to be. Especially since getting that revenge WON’T CURE THE CONDITION. Not even the power of the mightiest courts in the land can change the fact that you have contracted genital herpes and that you will have it for as long as scientists remain unable to find a cure. Try to remember that before you decide you want to press charges.
Third, some people don’t think that criminalising the transmission of STDs will have very much of a deterrent value at all. And it’s not just bleeding liberals who are saying that.
We can draw parallels here with the thoughts expressed on the criminalisation of HIV transmission. Groups that have questioned the deterrent effect of criminal sanctions in this area include the American Bar Association, the American Civil Liberties Union (okay, okay, so those guys are bleeding liberals), and the South African Law Commission, which in a report dated 2001, stated that “the enactment of any such [legislation] might thus be largely of symbolic value”.
Anyway, even if there were a deterrent effect, and more people who knew they had herpes started disclosing their condition to potential partners, this would be offset by the negative effect on people who were considering being tested for genital herpes.
Let me explain. If a person suspects he or she has genital herpes, but knows that by confirming the diagnosis he or she (having knowledge of the condition) is more likely to fall foul of the criminal law against transmission, that person will probably choose to remain in the dark about his or her true status. That means more people out there sticking their head in the sand, and passing on the virus.
Punishment creates negative side-effects
Allowing recourse to the criminal law, when someone infects another person with genital herpes, presents several disadvantages. One of those is the negative deterrent effect raised above (people who suspect they have herpes will avoid being tested). Several other disadvantages are listed below.
a) Invasion of privacy
Have you read the novel ‘1984’? It’s about what happens when the government gets too closely involved in people’s lives. The answer is not pretty.
Now, little can be more private to a person than his or her sex life. So if a person chooses, in his or her consensual sexual relations, to expose others to the risk of contracting a disease, then it would require a very, very good reason for the government and the courts to get involved.
It can be argued that the transmission of genital herpes, a non-fatal and treatable condition, is a good enough reason, especially in cases where the transmission was not malicious (a lawyer’s word for deliberate).
If the criminal law was to become involved at all, perhaps this should be confined to cases where the offender deliberately inflicted others with the disease, because in such cases his or her right to privacy might indeed be outweighed by other factors.
b) Stigmatisation of HSV carriers
Probably nobody with genital herpes ever actually wanted to catch the disease. For that reason, all those who carry the herpes virus in their nether regions can probably be considered victims to some extent or another, even those who knew of the risk and – for the love of their partner or the excitement of the moment – voluntarily took it.
Genital Herpes and Jail Note:
If you read ‘Bug Chasing’ by Gregory Freeman or watch ‘The Gift’ by Louise Hogarth, you will see allegations that some people actively seek infection with STDs.
Now, victims deserve sympathy and encouragement. Yet what victims of HSV sometimes get is quite the opposite – stigmatisation. It’s possible that making the transmission of herpes a criminal offence will reinforce this negative treatment. We can see this by looking at the situation with regard to HIV.
Responding to the verdict in the Scottish case of R v Kelly discussed above, Lisa Power of the UK’s Terrence Higgins Trust was quoted in the newspaper as saying:
“We don’t believe that criminalising the virus is going to make things any better… It is really going to help restigmatise HIV in a way that is hugely unhelpful. We have been working towards a situation where people with HIV are able to talk about their status and don’t feel afraid or feel they need to conceal it.”
These words could just as easily have been said about people with genital herpes.
Indeed, in 1998, the UK Home Office – disagreeing with the US Commission we heard about above – issued a consultation paper in which it indicated that the British Government had not accepted the recommendation that there should be specific offences created to enable the intentional or reckless transmission of disease to be prosecuted. The paper stated that the Government was “particularly concerned that the law should not seem to discriminate against those who are HIV positive, have AIDS or viral hepatitis or who carry any kind of disease”.
c) Unfairly targeting vulnerable groups
The South African Law Commission’s report of 2001 drew attention to the fact that women are more likely than men to be aware that they have an STD, due to their attendance at ante-natal clinics. And as the report states: “This means that a specific offence aimed at punishing deliberate infection will impact disproportionately on and further victimise women”.
But it’s not only women who are at risk of being disproportionately affected.
In the Canadian case of R v Cuerrier, the judge Justice McLachlin recognised that “because homosexuals, intravenous drug users, sex trade workers, prisoners, and people with disabilities are those most at risk of contracting HIV, the burden of criminal sanctions will impact most heavily on members of these already marginalized groups.”
The same can probably be said of genital herpes.
d) Opening of the floodgates
There is a real risk that criminalising the transmission of genital herpes will create serious practical problems.
The first practical problem would be the sheer amount of work it might create for the authorities. In the Canadian case of R v Cuerrier, Justice McLachlin put the issue this way:
“The law does not presently make it an offence to engage in sexual contact without disclosing to one’s partner possible risks, as Justice Cory proposes. Nor does it make every deception inducing consent to physical contact a crime, as Justice L’Heureux-Dubé proposes. What we know about the spread of HIV and other venereal diseases suggests that thousands of people engage in just such conduct every day. Henceforward, if the sweeping changes suggested are accepted, these people will be criminals, subject to investigation, prosecution and imprisonment. Literally millions of acts, which have not to date been regarded as criminal, will now be criminalized. Individual liberty will be curtailed. Police, prosecutors, the courts and the prisons will be dramatically affected.”
The second practical problem would be making sure that people who have genital herpes, but who honestly do not know it, are not unfairly prosecuted.
If you’ve read the section ‘Can I Have Them Thrown in Jail?’, you’ll remember that, in an English case called R v Sullivan, a prosecution for the transmission of genital herpes was unsuccessful. As was reported in the newspapers, “the ruling was welcomed by the Herpes Viruses Association. Its director, Marian Nicholson, said about 40 million people in the UK carried the virus [NB this figure must include cold sore sufferers]. Had this case progressed it could have made them all criminals – “a dangerous precedent to set”. She added: “Herpes is often caught from a partner who does not know they carry the virus, which can be dormant for years before symptoms appear”.”
The third practical problem would be the risk of the law ending up being used against unintended people. Indeed, if the law is based on the fact that the victim suffered harm without their consent, why should the law be limited to punishing people who transmit a disease? Couldn’t it also be used against people who cause pain to their sexual partners in other ways? Once again in the words of Justice McLachlin:
“For example, pregnancy may be regarded as a deprivation in some circumstances, as may be the obligation to support a child. It follows that lying about sterility or the effectiveness of birth control may constitute fraud vitiating consent. To take another example, lies about the prospect of marriage or false declarations of affection inducing consent, carry the risk of psychological suffering, depression and other consequences readily characterized as deprivation. The proposed rule thus has the potential to criminalize a vast array of sexual conduct. Deceptions, small and sometimes large, have from time immemorial been the by-product of romance and sexual encounters. They often carry the risk of harm to the deceived party. Thus far in the history of civilization, these deceptions, however sad, have been left to the domain of song, verse and social censure. Now, if the Crown’s theory is accepted, they become crimes.”
e) Complacency amongst the uninfected
If your objective is to prevent the spread of genital herpes, it may be that criminalising the transmission of HSV is the very last thing you should do. Criminalisation could mean, in particular, that people fail to take responsibility for protecting themselves, and instead rely on fear of the law to force partners to admit their sero-positivity before sex.
Lisa Power of the Terrence Higgins Trust, quoted in the newspapers in respect of the Kelly case, seems to agree. For Ms Power, criminalisation “will create a false complacency because people may see the trial and think ‘in future people will tell me’.”
Similarly, the Legal Working Party of the Australian States’ Intergovernmental Committee on AIDS (IGCA), which in 1991 released its discussion paper on Legislative Approaches to Public Health Control of HIV Infection, underlined amongst its conclusions that “each person must accept responsibility for preventing themselves from becoming infected”.
There is no reason why such a conclusion should not also apply in the case of genital herpes.