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.
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 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.
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 the 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 the 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.
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.
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.
