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.
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.
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.
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.
There’s a 20% chance of transmitting HSV-2 each time you have sex if you don’t use precautions.
[C]riminalising 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.
[Ed: There is a long history of men knowingly exposing their wives and girlfriends to STIs, including the recent high profile allegation about Bill Gates. This man got 13 months, but she got a life sentence. This article defends the unconscionable. He specifically lied to her. I hope more prosecutions follow.]
Source: A man’s been convicted for spreading genital herpes. Here’s why that might backfire
I agree with the editor’s comment. The notion that a person would not seek medica treatment for genital herpes because they wished to engage in sexual intercourse and ‘make it difficult’ to prove knowledge and hence avoid criminal liability for inflicting grievous bodily harm has little merit. Herpes is, apparently, extremely painful and it is highly unlikely that a person would ‘grin and bear it’ rather than seek treatment. If they restricted themselves to the chemist (for example) to avoid a medical record, a prosecutor should be able to elicit this in/by cross-examination. Ditto that they had symptoms and knew they did – whether or not a medical practitioner is able to say the person sought treatment. The cases in the United Kingdom are clear – proving the transmission, knowingly, intentionally or recklessly has succeeded in a number of cases involving a variety of sexually transmitted diseases. There is at least one reported (House of Lords) case from the 19th century on this – husband to wife.