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Criminalization of Herpes Exposure

April 27 14 Comments Category: Health, News

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Criminalization of herpes signals a turn for the worse

Man arrested and charged with aggravated sexual assault
Shawn Syms / National

First they came after people with HIV. Cops and courts may be starting to cast the net far wider now. If you have herpes, watch out.

The use of criminal law to police and punish sexual behaviour has been on the rise in the past year, with several high-profile cases where HIV-positive people faced charges based on allegations of “exposure without disclosure” — accused of having potentially risky sex with others without revealing their HIV status. Such claims are essentially impossible to scientifically prove, and no HIV need be transmitted in order to an allegation to lead to an arrest. A range of experts have pointed out that this dangerous trend does little to protect anyone. And it appears things may be about to take a turn for the worse.

Last month, Ottawa media outlets broke the news that a 33-year-old master corporal in the Canadian army was arrested in February after allegedly having sex with female partners without informing them that he had herpes. Military police claim the sex acts took place as far back as 2004. And to make things look even more unscrupulous, a report in the Ottawa Sun on Mar 18 announced that the soldier has now also been accused of possessing child pornography.

For all anyone knows, it may be a photo downloaded from the internet of a teen who appeared to be an adult. It would be no surprise to learn police had sifted through the accused’s computer — after all, they may have snooped through his email to round up as many past sex partners as they could find. The public may never know the full truth, but this coverage sends a pretty clear message: someone who has a sexually transmissible infection (STI) and has sex with multiple partners is an intrinsically bad person, so it’s no wonder they have “kiddie porn.”

Despite the lack of details, the newspapers had no compunction about publicly identifying the accused by publishing his name. This is a form of “trial by media,” says sex-criminalization expert Edwin Bernard, author of a forthcoming book on criminal sex charges. He points in particular to the Ottawa Sun headline “Child porn charge for herpes spreader”: “This suggests the accused is already guilty, when in the Canadian legal system people are assumed innocent until proven guilty.”

The charges — six counts of aggravated sexual assault and six counts of criminal negiligence causing bodily harm — are based on events that took place in Ontario. What does the provincial government have to say about herpes? “Herpes is a nuisance condition in adults,” according to the website of the Ontario Ministry of Health and Long Term Care, which adds that “most media stories about herpes are exaggerated.” Aggravated sexual assault is defined in the Criminal Code as something that “wounds, maims, disfigures or endangers the life of the complainant.” When applied to a common STI like herpes, this could be considered an exaggeration.

Criminal charges for STIs beyond HIV are not completely unprecedented, in Canada or internationally. There has been at least one successful case involving hepatitis B in Sweden, a hep C prosecution in Scotland and cases involving gonorrhea and hep B in England and Wales. And last month, a man was jailed in PEI for a hep B exposure conviction.

What are the implications of exposure-without-disclosure charges expanding from the realm of HIV to other STIs such as herpes? In the case of HIV, the problematic nature of these cases is obvious. HIV is comparatively difficult to transmit, and it’s completely possible and in fact commonplace for people with HIV to responsibly engage in protected/negligible-risk sex without having to tell anyone their personal medical information. Sex with a person with HIV is not intrinsically dangerous, but because of the vast amount of misinformation, discrimination and stigma surrounding HIV, people who disclose their status may be exposed to serious personal risk. And there is an increasing medical consensus that many HIV-positive people on successful medical treatment may not even be capable of transmitting HIV even in instances of unprotected sex.

But herpes is different. First, it’s far more common than HIV — which means many more people could potentially face charges. There were roughly 65,000 people with HIV across Canada in 2008, according to the Public Health Agency of Canada (PHAC). There are no official Canadian statistics on the number of people with herpes, because unlike other STIs such as gonorrhea, hepatitis C and syphilis, it isn’t even considered a reportable condition by public-health authorities. But the World Health Organization estimates that herpes affects over 500 million people around the world. Some US figures say the numbers there may be as many as 1 in 4 women and 1 in 5 men.

And herpes is much easier to transmit. As the College of Family Physicians of Canada notes on their website, “Genital herpes is spread easily. The virus from an infected person can enter your body by passing through a break in your skin or through the tender skin of your mouth, penis or vagina, urinary tract opening, cervix, or anus. Herpes is most easily spread when blisters or sores can be seen. But it can be spread at anytime, even when there aren’t any symptoms.”

So if you have an STI that’s not hard to pass on, shouldn’t you be as careful as you can? Yes, says legal expert Bernard. “Ethically, whenever someone is aware that they have an infectious disease, of course they have a responsibility to keep it to themselves.” Disclosure is only one of the ways to achieve that though, he says.

“But the personal ethics of disclosing an STI — whether it be herpes or HIV — is a totally separate issue from criminalizing non-disclosure,” he adds. “We may not like it when a partner exposes us to an STI and may morally object, but I would argue that complaining to the police is even more of an ethical wrong than not disclosing in the first place. This leads to a cycle of blame, media reports and further complaints that can only ultimately harm public health.”

It remains to be seen if increased prosecutions for herpes and other common STIs are the next wave of the Tories’ law-and-order agenda. But given how the entire line of thinking behind this punitive approach relies upon exploiting and reproducing sexual shame, we can probably safely assume there’s no risk of locking up people for spreading influenza, which kills far more people than herpes (which is generally not fatal except in infants).

When having an STI becomes criminalized, it discourages disclosure because once someone is identified they become a potential target, regardless of how responsible they may be. As the focus shifts from HIV to herpes, we’re no longer talking about tens of thousands of Canadians at risk of persecution, we’re talking about millions. Despite the Tories’ lust for “super-jails,” there just aren’t enough cells for all the possible lockups.

Imagine a world where the majority of people do everything they can to protect one another’s sexual health and prevent disease transmission, where sexual education is universal and guilt and fear are eradicated. Do you think prosecutions like these are the route to a world like that? Somehow, I don’t.

Also read Mr. Sym’s Criminalization of HIV entry.

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14 Responses

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  1. I AGREE with the laws. You need to know your status before going out and having sex. Ignorance is not a defense to prosecution. Who wants HIV or herpes???? The laws will make people think twice before recklessly endangering other people!!

    Aaron 6 April 2010 at %I:%M %p Permalink
    • While I agree that it should be a crime to KNOWINGLY infect a person with any STD, the fact is that only a small percentage of people with herpes even know that they have it. While > 20% of the adult population has it – according to the CDC – only a fraction of those people know they have it. I KNOW I have it – and disclose to every potential partner before sexual contact. I’m not looking for sainthood; that’s just the way I am.

      Most herpes cases are transmitted by asymptomatic people; no visible sign of herpes, but contagious nonetheless. For many, the symptoms are minimal or unnoticed, and can be nothing more than a slight tingle in the genitals. Until the medical community starts suggesting that every sexually active adult get tested for herpes, this rampant virus will continue to spread – laws or no laws.

      JD 19 June 2010 at %I:%M %p Permalink
  2. I think to criminalise desease transmission is crazy (unless on purpose, bad intentionally, of course). Specially with HIV there is plenty of information, each of us has the responsability of using condoms. No one forces you to have unprotected sex. Simply, one should always use condoms.
    For hepatitis B and A there are avaliable very effective vaccines. If you have sexual contacts you should be responsable and get vaccinated.
    We all should be responsable of caring of ourselves, getting checked periodically if sexually active. We cannot ask for the others to be responsable for our own negligences. Specially when there is so much information and social services avaliable.
    Is a bit like a smoker complaining for getting lung cancer (although not the same…).

    Nando 6 April 2010 at %I:%M %p Permalink
  3. As someone who was lied to about Herpes and was encouraged to sue, I can say that I think a low level of criminalization is a good thing. Disclosure is a necessary part of STI control. I think it’s a little naive to say “its only one of the options for handing STIs.” It’s basically the one necessary option, in my mind.

    yes, criminalize it! Protect people like me from what is a biological form of fraud.

    Anon 9 April 2010 at %I:%M %p Permalink
    • Well Anon…it’s not protect people like you Now…it’s protect people from YOU….you’ve admitted joining the ‘dirty’, ‘unclean’, group…you’re now just another biological criminal in waiting

      anon 10 April 2010 at %I:%M %p Permalink
  4. I’m on the fence, as sadly, I have herpes, and I would hate to see the angry mobs come after me with their torches. But on the other hand, the man who gave me herpes knew he had herpes, and yet he chose not to tell me, and worse yet, he chose not to wear a condom. Having herpes has drastically changed my life forever, brought on serious depression and thoughts of suicide, and shattered my lifelong dream of ever finding “The One” and having a serious, committed relationship. I am constantly rejected b/c of it, and one need only peruse any page of Manhunt or any other online sex site, or even a personals site such as Match.com to see how people with STIs are regarded. I can understand his not telling me, what with the stigma associated with STIs and the constant rejection associated with having one, but he should have at least worn a condom. By not doing so, he knowingly put me at risk, and it’s hard for me not to want to see him punished for that, as he ruined and destroyed my life by infecting me! Why should he get off scot-free while I now get to live my life alone and in shame and ongoing depression?

    (and yes, I do realize that ultimately it’s my fault for ever allowing anyone to bareback me, but still he had a responsibility to at least wear a condom knowing he had the disease)

    Karl_with_a_K 11 April 2010 at %I:%M %p Permalink
    • Karl, it’s clear that you have a lot of unresolved emotions about something unpleasant that you played your part in. You chose to have unprotected sex with someone, you chose to put someone’s penis into you without a condom and you ended up with an incurable STI as a result. Of course you feel conflicted because you placed yourself in harm’s way and you took that herpes from that other person. And it’s understandable that you are upset because you got yourself infected with something non-trivial. All of the above is equally true whether or not the other person knew they had anything. And yes, if the person did know, then it is fair to say that you both bore some responsibility for what happened. The problem with criminal law is that it doesn’t allow for the reality that you both made a mistake. Unlike other legal approaches such as civil law, criminal law only sees one innocent party and one guilty one — and although you are clearly in retrospect focusing on the other person’s actions, you have acknowledged in your own comments that both people bear some responsibility. And if you acknowledge, as you have, that responsibility is shared, then there is no point to trying to determine who is more responsible or less responsible. From here, you need to take care of yourself — and, very important, get some emotional counselling. This is because it seems clear from your remarks that your reaction is disproportionate to the situation you’ve gotten yourself into, and inaccurate. Millions and millions of people have herpes. It is a nuisance condition like the article says. You have not shattered, ruined or destroyed your life or anything else, and neither has he. I’m sorry you are upset, but you need to get treatment and education and over time you will change your point of view about yourself, your life and your future prospects.

      Anyman 13 April 2010 at %I:%M %p Permalink
      • hey u can catch herpes even if u wear a condom……………..at the end of the day its not life threatening and also like hiv there are people out there who didnt ask for it as careful as one is. this is where the problem lays is with people like yourself so uneducated about it all…………………..apparently they have a cure , but they make more money from treatment . maybe someone should look at that!!!!!!! who are actually irresponsible

        jace 15 April 2010 at %I:%M %p Permalink
    • hi there!!!
      Don’t be so depress. I guess mainly around the gay world herpes is even a bigger stigma. I guess gays embrace HIV more quicker as straight couples became more comfortable with herpes. I have herpes too and when I dated my last ex it was hard to disclosure my status. At the end he understood me and appreciated my sincerity. At the long run maybe if some guys knew that they will be better off even dating someone who has herpes and will take his medicines to keep the virus in a dormant stage probably everything will be different. I haven’t given up on love. I know I am a good guy and I am more than just a virus. Probably, herpes on the long term will be a good filter from the guys who would want to be with me for the wrong reasons vs the ones who will really want to be with me because they love me. Because if a guy really loves you he will see pass your virus and will see your qualities. Plus they say 1 in 5 men has it. So maybe there will be a guy in the same situation out there who could be the one. Just stay optimistic :)

      lechat 14 June 2011 at %I:%M %p Permalink
  5. It feels to me that herpes is a dirty secret on the hookup sites. While there is a field for disclosing HIV infection, there is not one for HSV-1 or HSV-2. It seems to me that people focus on HIV and ignore HSV. Why not put check boxes for all incurable STIs ?

    Gusser 19 June 2010 at %I:%M %p Permalink
  6. I really don’t get how people who don’t have herpes give themselves the right to judge us who do have it. You can never understand what it’s like to live your life with an infection like this. I too was not told that my boyfriend had it, he only told me after two years and I went and got tested straight away only to find out I have it. I have been with him for four years now and have tried to deal with it but I am finding it hard to forgive him as things are not working out between us and the thought of having to tell someone once we break up scares me more than anything. I want report him to yh police so he can pay for what his done. People need to understand that they are not god and should be punished for taking control of another human beings life in their hands and destroying it. I can never live a normal life because he was too pussy to just let me know.

    Persia 28 January 2012 at %I:%M %p Permalink
    • i totally understand where your comming from the same thing happened to me, just alil different and i can’t get over it . it has ruiend my life . i want him 2 pay too

      luscious 9 January 2014 at %I:%M %p Permalink
  7. The only reason why people feel guilty about having this STI is because of other people who make them feel guilty and ashamed of it (It is not even life threatening, it is stigmatized). If it was accepted, it would not be such an embarrassment to be infected. Some people were not infected by choice, why should they feel ashamed and persecuted as well? The guilt and shame caused by the public and the uneducated is more harmful than the virus itself. Society brands individuals and just promotes that it is okay to bully others for something they cannot change. It comes from the same virus that causes cold sores… so should we start branding people with cold sores? Wait… the pharmacy sells medication to help heal them, and having a cold sore is not seen as devastating, although it is caused by a virus itself.

    An opinion 23 February 2012 at %I:%M %p Permalink
  8. that was 2 persia

    luscious 9 January 2014 at %I:%M %p Permalink

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