Not detecting Herpes can have the following consequences, as reported in The Guardian, Friday 19 August 2011:
Pass on herpes, go to jail?
Herpes is a common, manageable sexually transmitted infection. A 14-month sentence for transmission is draconian.
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.”
Granted, in this particular case the transmission of Herpes was wilful and done with malice, however it does illustrate that the courts are prepared to consider the transmission of diseases in a criminal context and take appropriate action against the individual for not taking a suitable level of care to protect their partner.
Another case is equally enlightening, featured in WebMD on May 22, 2000:
When a Partner Gives You Herpes: Can you sue? Perhaps. Just don’t expect an easy win.
Catherine Leleux of Louisiana was barely 18 years old in 1995 when she was seduced by her Navy recruiter, Petty Officer Paul Sistrunk. Several weeks later, she came down with a case of genital herpes. Leleux sought out a personal injury lawyer, Lamont Domingue. Struck by her calm, affable demeanour, he agreed to take the case, even though he knew that a sex-related lawsuit in politically conservative Louisiana would be “ugly and hard-fought.”
In filing suit, Domingue sidestepped Sistrunk and went after his employer, the federal government. After all, it had the deepest pockets, and it was vulnerable: Navy officials had discharged Sistrunk under “less than honourable conditions” after Leleux’s complaint came to light. Domingue thought she could collect a half-million dollars. But it was not to be: Last July, the U.S. Court of Appeals ruled that Leleux didn’t have a case.
Technically speaking, the court said, Sistrunk’s failure to disclose his herpes made the sex he had with Catherine non-consensual, because she would not have agreed to it if she had known about his disease. Reasoning further, the court held that if the sex was non-consensual, it was battery. And because battery is intentional, under federal law the U.S. government could not be held liable (as it would have been if the sex had resulted from its negligence).
Leleux packed her bags and moved to another state, marrying a man who knew her history and was willing to contract herpes from her (which he promptly did). Meanwhile, Domingue was left to ponder a sad truth: While it can take no more than a single night of sex to contract a sexually transmitted disease (STD), trying to collect damages for the hurt that follows can be a legal nightmare.
So there can be absolutely no doubt that herpes transmission whether wilful or not can and will be taken very seriously by the law and any individual caught up in such a case will suffer immeasurable harm and distress throughout the court proceedings and indeed for many years after. This can apply to both parties in the case who will suffer the trauma of a complicated legal case that will ultimately leave one side unhappy. The testing for and detection of Herpes will thus empower the individual to make appropriate decisions and ensure they do not expose themselves to the risk of any legal actions brought by a former partner.