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Wednesday, 24 August 2011

Herpes: Don't pass it on ...

Published in Halsbury's Law Exchange here.  I have not managed to find an appropriate picture.

Two things of perennial interest to the tabloids are crime and sex, jointly or separately. It is therefore no surprise to find a story involving both in the Daily Mail. One David Goulding pleaded guilty to grievous bodily harm after knowingly giving a former girlfriend, Cara Scott, genital herpes. He had known he was infected but did not tell Miss Scott until just before the relationship ended, by which time she had already contracted the disease. He was sentenced to 14 months’ imprisonment.

In legal terms the matter was straightforward and uncontroversial: by Mr Goulding’s conscious action Miss Scott was exposed to the disease without her knowledge, and the eminently foreseeable consequence came to pass; hence the guilty plea. It is however worth responding to reported comments by spokespeople for what is called the Herpes Viruses Association. According to the Mail article:

Nigel Scott, spokesman for the Herpes Viruses Association, said Golding’s sentence was ‘outrageous’ and compared the case to prosecuting children for ‘giving their friends chicken pox’.

He added: ‘It is such a trivial infection that most people don’t notice it. It has exactly the same medical implications and consequences as an ordinary facial cold sore.’

Marian Nicholson, director of the HVA, added: ‘Many of those who are diagnosed are reluctant to disclose their status but this is because of the unnecessary stigma, not because it is serious ... emphatically it is not.’

There are two points. First, the intentional – or reckless – transmission of an infectious disease by the very specific act of sexual intercourse is not of a piece with the accidental transmission of chicken pox by virtue only of being in proximity to someone else. The former is eminently avoidable and properly described as intentional or knowingly reckless; the latter rather less so, unless I suppose one’s imagination contrived a situation where a person deliberately initiated as much contact as possible so as to render the transmission of something like chicken pox almost inevitable.

Secondly, there would or should be no stigma attached to the victim in the circumstances of Miss Scott, any more than any other innocent victim of a crime, but that has nothing to do with prosecuting the offender. No-one should look down on someone with a broken leg but they should certainly prosecute the person who inflicted it. In Mr Goulding’s case, however, any concern he might have had about his stigma ought to have been less important than his obligation to inform Miss Scott of his condition. The aforementioned association might think the condition trivial but I rather suspect most people would prefer not to contract it, and to be warned of any risk accordingly.

1 comment:

  1. While I agree with you that the comparison to chicken pox is not entirely apt, likewise are comparisons to a broken leg. Luckily, when it comes to herpes, we don't need to make specious comparisons to incomparable events. We have something very relevant we can compare herpes to: the cold sore.

    The comparison to cold sores is apt, as they are really the same thing.

    Herpes and cold sores are symptomatically identical, regardless of the location or the strain (and both strains can cause herpes in either location).

    Would you consider it reasonable to prosecute or jail somebody for transmission of cold sores (aka oral herpes)? Would you consider it reasonable to legally mandate disclosure before somebody with a history of cold sores kisses another person?

    Of course, the entire notion is absurd. So the question then becomes, what is the difference between cold sores and genital herpes. Why is one taken to be so trivial that nobody would consider it necessary to even consider disclosure, and the other one so serious that some people (horrifically) feel that prosecuting transmission makes sense.

    The answer of course lies in the stigma. Your comments regarding the potential stigma of "innocent victim" misrepresent the issue of stigma in this particular case. We're not talking about the stigma that victims of some crimes experience. We're talking about the stigma that genital herpes has, regardless of whether or not transmitting the virus is illegal or not. Given that oral and genital herpes are medically very similar, to the point of being symptomatically identical, we can quite safely say that the stigma surrounding the virus is irrational. Punishing people for transmission of genital herpes serves only to feed that unreasonable stigma. Punishing people for transmitting genital herpes is as unjust as punishing people for transmitting cold sores would be.

    So I would ask anybody else who feels that transmission of herpes should be an issue for the courts, to explain why tranmission of cold sores (i.e., through kissing without disclosure) should not be a criminal offense, yet transmission of genital herpes should be. The notion that the two should be treated differently legally simply has no basis in medical reality. The fact is that herpes is a relatively trivial medical condition, just as cold sores are (again, they are essentially the same condition). That people would "prefer not to contract it" is not reason enough to warrant casting genital herpes as a criminal issue. People would also "prefer" not to have cold sores.