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.