Criminalization of herpes signals a turn for the worse

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 for 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 March 18 announced 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 negligence 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 more than 500 million people around the world. Some US figures say the numbers there may be as many as one in four women and one in five men.

And herpes is much easier to transmit. As the College of Family Physicians of Canada notes on its 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.