Just to recap, we know now that judges today have moved back to the position their forerunners had way back in 1866 when Justice Willes made his decision in the case of R v Bennett (remember R v Bennett? If not, take a look back at the section ‘Will the Courts Throw Them In Jail?‘).
In other words, judges today consider it possible to convict someone of a crime, if that person has transmitted an STD to someone else.
But heeeyyyy! Wait just a cotton-pickin’ minute! All those cases we looked at in the section ‘Will the Courts Throw Them In Jail?‘ – they’re all about HIV! Johnson in the USA, Cuerrier in Canada, Kelly in Scotland, and Dica in England. All HIV! Sure, the judges all MENTION other STDs and say that the rule they’re laying down SHOULD apply to those other STDs. But do we have any actual, real-life examples of that happening?
The answer is: at this stage, not really.
So far, I’ve managed to track down only two criminal cases for transmission of herpes. That’s two more than there were before the decisions on Johnson, Cuerrier, Kelly and Dica. But it’s still only two cases! I’ll tell you about them in just a second, but very quickly I’d first like to suggest why, if the finest judges on both sides of the Atlantic say it’s okay, no-one seems to be busily prosecuting people for transmitting herpes.
There are probably two main reasons.
First, public prosecutors are very busy people and, like busy people anywhere, they prioritise. Someone transmitting genital herpes is not a murder case. It’s not a terrorism case, a rape case, or a kidnapping, either. Yes, WE KNOW it’s a devastating event, but for a hard-pressed public prosecutor, whose only contact with herpes has probably been to tell or laugh at jokes about it (as – admit it – we all did before it entered our lives), transmission of the condition is probably not a crime he or she wants to spend the most time on.
Second, people who catch genital herpes are not necessarily going to want to shout about it from the roof-tops. And a criminal court-room is a MIGHTY BIG roof-top. The victim would have to discuss her sex life in front of complete strangers, and she would probably have to defend herself against slurs on her character launched by the defendant’s attorney (lawyers call these slurs ‘character assassination’ – you get the picture).
So I think, until we get a case where someone has begun infecting multiple victims – which should get the public prosecutor a little more interested – and a case where the victims are able and willing to go through the difficult court process – there ARE hard-skinned survivors out there – then criminal prosecution of people who transmit genital herpes will remain a pretty rare thing.
But anyway – back to those two cases! One is from the jurisdiction of England and Wales, and the other is from the jurisdiction of New York.
The herpes prosecution from England
The English case was called R v Sullivan. The action took place in a town called Southfields, near London, where, in late 1998, a doctor called Richard Sullivan, in his early 30s, began dating a lawyer, also in her early 30s and whose name has never been released (quite right, too). The two had unprotected intercourse over the course of seven months and, somewhere near the end of all that sex, the woman claimed she experienced a primary outbreak of genital herpes.
Now, by all accounts, Dr Sullivan liked to tell a porky or two. He had, for example, told the woman that he was an SAS officer and had advised British troops in Kosovo, whereas in fact – as his lawyer admitted – neither of those was true. Was it possible that he’d also lied about the health of his genitalia? The woman said he had, and a public prosecutor believed her – enough to bring a criminal prosecution against him for sexual assault, on the basis – you guessed it – that the woman’s consent to intercourse had been rendered void by the doctor’s failure to reveal an “important fact” – the fact that he had herpes.
In the end, the judge found the doctor not guilty, because the public prosecutor didn’t manage to prove that doctor knew he had herpes, nor that – if he did – it was him who had given it to the complainant (one witness told the court that the woman had gone to hospital with symptoms 10 months before having sex with the doctor – not a helpful witness for the prosecution). But the case remains historic anyway. It was the first time that a person in England had been prosecuted for transmitting genital herpes.
The herpes prosecution from New York
The New York case is a little more recent and a little better known. In fact, you might remember reading about it. The facts are, to say the least, unusual. Let me explain.
Every year in New York, tens of thousands of circumcisions are performed. A few thousand of those circumcisions take place in accordance with an ultra-Orthodox Jewish religious ceremony called ‘metzizah bi peh’, whereby the rabbi draws blood from the wound not using his hand – as other rabbis might – but using his mouth.
Well, Rabbi Yitzchok Fischer is one of these rabbis and, unfortunately, he gets cold sores. That is, he has labial herpes. And tragically, according to the New York City Health Department, three infants circumcised by Fischer during the period from late 2003 to late 2004, contracted herpes from him. Babies’ immune systems are not as strong as ours, and one of the babies died.
In November 2004, the Health Department issued an order requiring Fischer to use a sterile tube and gloves when performing called ‘metzizah bi peh’. In December 2004, when it received a report that Fischer was continuing to use his mouth, its lawyers filed a complaint at the Manhatten Supreme Court. A restraining order was in place and a criminal prosecution seemed to be looming.
However, as in the English case, there was no conviction. In fact, the case never actually got to court. Well, not to a normal court, anyway. Meetings between the New York authorities and the ultra-Orthodox community led to the case being transferred, in September 2005, to a rabbinical court from the Central Rabbinical Congress. It should be pointed out that Fischer’s lawyer denies that Fischer was responsible for the transmission of herpes to the three babies concerned.
Genital Herpes and Criminal Law Note:
We’ve only found two cases of prosecutions for transmission of herpes, but herpes does get a mention – as a kind of ‘guest star’ – in a number of prosecutions for OTHER crimes, most notably for rape and child sexual abuse. In rape cases, transmission of herpes can be used as evidence of cruelty and, under the legal principle called ‘enhancement’, lead to a harsher penalty. In child sexual abuse cases, the fact that the victim has genital herpes can be used as evidence to prove whether or not the defendant was indeed the abuser.