A man’s been convicted for spreading genital herpes. Here’s why that might backfire

In an Australian first, a Canberra man has been convicted for giving genital herpes to a sexual partner.

The man pleaded guilty to the charge of “recklessly inflicting grievous bodily harm”, which carries a maximum sentence of 13 years. He will be serving his 13-month sentence, handed down last week, under a community correction order.

However, history shows this approach to sexually transmitted infections (STIs) doesn’t make the community safer – and can actually backfire.

What is genital herpes?

Genital herpes is an STI caused by the herpes simplex virus. It can cause outbreaks of blisters or sores around the genitals and anus.

Genital herpes is mainly caused by type 2 of the virus (HSV-2). Less commonly, it’s caused by herpes simplex virus 1 (HSV-1), the strain that causes cold sores or “oral herpes”.

The STI is relatively common. Up to one in eight sexually active Australians live with genital herpes.

There is no cure, meaning infection is lifelong. But antiviral medications can help manage outbreaks when symptoms flare up, and reduce the chance of transmitting herpes to a sexual partner.

The details of the case

The convicted man had been diagnosed with HSV-2 in 2020, but did not disclose this when a prospective sexual partner asked about his STI status in 2023. They then had sex on several occasions.

The woman acquired HSV-2, and the man later acknowledged he had the virus and didn’t tell her, saying he feared sexual rejection.

He also said he didn’t think she would contract HSV-2, in part because he had no sores or blisters at the time and so believed he was not contagious.

The man added that health information he had consulted suggested he was not legally required to disclose his diagnosis to sexual partners.

What was he charged with?

The man was charged with inflicting grievous bodily harm. This is the same offence used to prosecute serious physical assaults, such as those causing broken bones or serious or permanent disfigurement.

In Australian Capital Territory law, causing someone to acquire a “really serious” bodily disease can be treated as inflicting really serious bodily injury.

Prosecutions for inflicting a “grievous bodily disease”, as it is often called, have only been successful in Australia for transmission of HIV. These earlier prosecutions have been controversial.

While there have been previous convictions related to HSV-2 transmission in the United Kingdom, this is the first known prosecution in Australia.

What is the risk of transmission?

HSV-2 is most infectious when a person has symptoms – visible blisters or sores, or a tingling feeling before blisters develop. Symptoms are typically rare and sporadic.

The man may have genuinely thought his partner would not contract HSV-2 – or at least be unlikely to – as he didn’t have symptoms. But the virus can shed even without any symptoms.

Many people have HSV-2 without knowing it. People can also have asymptomatic infection, meaning they never experience the blisters and sores, but still transmit the virus to others.

Other than avoiding sex during herpes outbreaks, HSV-2 transmission risk can be reduced by barrier methods such as condoms, or by taking suppressive antiviral medication.

There’s a 20% chance of transmitting HSV-2 each time you have sex if you don’t use precautions.

The ethics and the law

Being honest with sexual partners is important. From a public health perspective, however, criminalising the transmission of STIs is a problem.

This recent case represents a significant expansion of criminal law into sexual health. It sets an unhelpful legal precedent, and undermines successful public health messages.

Decades of research have concluded that prosecuting disease transmission doesn’t reduce infection and may make things worse.

Most evidence focuses on HIV. Studies indicate that criminalisation makes no meaningful difference to sexual behaviours that reduce the risk of transmission and is actually associated with less successful HIV control at a national level.

Diagnosis and treatment are the cornerstone of good STI management, from HIV to herpes viruses to chlamydia.

Treating STIs is a highly effective way to stop them spreading. Relying on sexual partners to disclose infections is far less reliable.

But criminalising transmission can create perverse incentives not to seek medical care and treatment. If a person genuinely doesn’t know their status, it can be more difficult to prove “reckless” transmission.

Putting the entire responsibility for safe sex on the person living with an infection is unfair, and bad for public health. It further entrenches the stigma surrounding particular infections. For HIV, we know stigma discourages people from seeking testing.

What are the alternatives?

People frequently have sex with people they may not know well. So expecting that a potential sexual partner will always disclose an STI may make sense in principle, but is not realistic.

As this recent case shows, some people fear rejection if they disclose an STI. They may worry their personal information will be spread and used to shame them.

A shared responsibility model means people who don’t have an infection take active steps to protect themselves, rather than relying on a partner to disclose.

This approach also recognises that a potential sexual partner may not know whether they have an STI, so even with the best intentions precautions are needed. Safe sex requires pragmatic self-protection.

On a personal level, you may expect someone you have sex with will answer honestly if you ask them about STIs. But our public health system should not rely on this – and given the complex history of stigma, the legal system should not punish those who don’t disclose an STI.