How should the criminal law respond to those who pass on sexually transmitted infections (STIs)? The answer to this question has become more pressing in light of the conviction of David Golding, who pleaded guilty at Northampton crown court to causing grievous bodily harm by passing on genital herpes to his former partner, Cara Lee.
Sentencing Golding to 14 months in jail, the judge said:
"Because it was in a relationship, it was particularly mean and one which amounted to a betrayal – a betrayal in a relationship in which you professed love … The injury you caused by this infection is at least or more serious than an injury leaving a scar because it carries continued recurrence, extreme discomfort and consequences for relationships she will have in the future."
Until this decision, the only convictions for transmitting STIs in England and Wales in recent times (bar one, for hepatitis B), have concerned HIV. In the case of Mohammed Dica in 2003, the court of appeal held that for a person to be liable for recklessly causing serious bodily harm by passing on the virus he must have known his HIV positive status at the relevant time. The following year, in the case of Feston Konzani, the same court explained that while a partner's consent to the risk of transmission was a valid defence, that consent had to be of an informed kind (in effect requiring prior disclosure).
These and other convictions have caused consternation in the community of people living with HIV, legal academics and the national organisations (including the National Aids Trust and the Terrence Higgins Trust) which represent their interests. While there is widespread acknowledgement of the importance of practising safer sex and disclosing HIV-positive status to sexual partners, there is similarly widespread international concern (from, for example, UNAids, IPPF and the Open Society Institute) about the adverse public health impact of deploying the criminal law as a response to transmission and the potential for miscarriages of justice.
For example, it is argued that because people can only be held criminally liable if they know their infected status this may operate as a disincentive to HIV testing, that the de facto obligation to disclose for the purpose of gaining consent may cause people to interpret non-disclosure of status by a partner as meaning that the partner is free from infection, and that limitations of forensic science (which cannot determine route, timing or source of transmission) mean that people may plead guilty when they are not.
Such concerns have resulted in a high-level global commission on HIV and the law and, more locally, the publication of guidance by the Crown Prosecution Service for England and Wales in 2007, the aim of which was to explain the factors that prosecutors should take into account when deciding whether or not to pursue a case. Among other things it highlighted the fact that scientific evidence alone is not conclusive and that practising safer sex would make establishing recklessness difficult. In its words:
"Prosecutors will need to take into account what the suspect considered to be the adequacy and appropriateness of the safeguards adopted; only where it can be shown that the suspect knew that such safeguards were inappropriate will it be likely that the prosecution would be able to prove recklessness."
The guidance is not HIV specific and applies to all cases involving alleged STI transmission, including infection with herpes, gonorrhoea, syphilis, chlamydia, hepatitis etc. So what's the problem?
First, irrespective of whether one agrees with criminalisation as a matter of principle, we have to question whether herpes simplex is a sufficiently serious condition to warrant 14 months immediate imprisonment (a sentence which would have been longer had Golding not pleaded guilty). Herpes is unpleasant, but it is manageable. Second, given the widespread incidence of herpes infection in the general population (70% have facial herpes (cold sores) and 10% genital herpes according to the Herpes Viruses Association) and that people may pass on the virus through "asymptomatic shedding", millions of people have been rendered potential criminals, including, presumably, those who pass on cold sores through kissing (how is "sexually transmitted" to be defined?). Third, given that herpes may be dormant for a long time, people may assume that it is a current partner who has transmitted it when in fact it was a previous one (the science is insufficient to establish that this is not the case), and people may ill-advisedly plead guilty when confronted with an allegation.
More generally, it is important to recognise that although the Crown Prosecution Service guidance relates to STIs there is no essential legal difference between a herpes virus that manifests itself as genital or facial sore and one that causes chickenpox. While some may be sympathetic to punishing those who infect sexual partners with an embarrassing and socially stigmatised condition, one suspects that far fewer would think it appropriate to criminalise a child above the age of criminal responsibility who infected a classmate with a normal childhood illness.
In addition, we might pause to reflect both as to why someone would think that going to the police and reporting a partner is seen as an appropriate response to discovering that one has an STI, and also that the law is prepared to respond in such a draconian way. Between 1888 (when there was a conviction for gonorrhea transmission) and 2003 there were no convictions for passing on an STI in England and Wales. Since then the number in this jurisdiction has increased significantly.
Sexually transmitted infections are a fact of life. They are things people would rather not have. Some are incurable but most, including HIV and herpes, are treatable and manageable. Criminalising people who have taken as much care as they are able to prevent onward transmission but are still treated in law as having been reckless does nothing to reinforce the message that we should take responsibility both for our own sexual health, as well as that of others. It does precisely the converse, and that is surely a bad and unhelpful thing.
