The courts should keep out of our sex lives

On 8 August 2011, a British man was jailed for grievous bodily harm (GBH) after passing genital herpes to his partner. This is the first time someone in the UK has been imprisoned for spreading herpes. How did a ‘cold sore gone south’ get to be so feared, misunderstood and stigmatised?

The history of the genital herpes stigma dates back a mere 30 years. Before then, the condition, which was first named by the Ancient Greeks, was well known to doctors – but it was not invested with the terror it commands today and the word herpes barely registered with the public.

Two viruses are responsible for genital herpes and facial cold sores. They are called herpes simplex type 1 (HSV-1) and herpes simplex type 2 (HSV-2). Either virus may be caught in either place.

The start of modern sexual health services

The modern era of sexual health treatment in the UK began in 1917, with the passing of the Venereal Disease Act as millions of soldiers mobilised during the First World War returned and began to infect their partners with the ‘social diseases’ they had acquired. This was a public-health crisis that terrified the government of the day, so a network of publicly funded clinics was set up. The Act named syphilis, gonorrhoea and soft chancre (or chancroid) as dangerous diseases for which free treatment was to become compulsory. Genital herpes did not get a look in. It was known to be a common, self-limiting condition and was rightly considered to be no more serious than a facial cold sore.

Little changed in the intervening 60 years. Public-health films were shown in cinemas to encourage fidelity and abstinence, and these films highlighted the horrors of syphilis and gonorrhoea while herpes was ignored. Indeed, genital herpes was so far below the radar that, as recently as 1975, the standard textbook for obstetric and gynaecological nursing did not even have the word herpes in the index. This omission would be unimaginable today.

The role of antiviral drugs

Meanwhile, antibiotics had succeeded in vanquishing previously feared bacterial infections like syphilis and gonorrhoea. Pharmaceutical research moved on to the next holy grail: antiviral drugs.

Finally in the late 1970s, one company, Burroughs Wellcome, succeeded, but it came up with an antiviral drug that only worked on viruses that were emphatically not in the frontline of dangerous diseases. The drug, aciclovir, only treated herpes simplex and herpes varicella/zoster – the viruses responsible for genital herpes/cold sores and chickenpox/shingles respectively. Patients with these relatively unimportant infections had, until then, only been offered palliatives. All these conditions are essentially self-limiting and they clear in days without treatment. Herpes simplex may recur in a milder form before symptoms clear once again. Chickenpox is a common childhood ailment that scarcely affects healthy children and causes no further problems unless it recurs as shingles, which mainly occurs in the elderly.

So having developed aciclovir, the drug company required a return on investment. But its marketing men had a problem: none of the conditions the drug might be used for required treatment except in extreme cases.

The herpes stigma is born

The answer was to pitch the drug at genital herpes patients. The trick would be to persuade them that the condition was serious enough to warrant expensive drug treatment. A disease-awareness campaign was organised to alert doctors and patients to the benefits of the new drug. The case was made by ‘marketing’ genital herpes so that it acquired the status of an important disease.

The strategy was spectacularly successful. Articles began to appear in newspapers. In the US, herpes became the cover story for Time magazine twice. Anything negative about the condition was highlighted in order to raise public concern. The word ‘incurable’ was harnessed to make genital cold sores seem serious. Rare cases of fetal infection were described as if they posed a threat to every infected pregnant woman. The herpes stigma was born.

Disease-mongering had gone mainstream. The trick had been to market herpes, not aciclovir. Once herpes hit the big time, the success of aciclovir was assured. This echoed the marketing of the antiseptic mouthwash Listerine in the 1920s, which turned a floor cleaner into a cure for ‘chronic halitosis’. In the words of advertising scholar James B Twitchell, ‘Listerine did not make mouthwash as much as it made halitosis’.

In America, Burroughs Wellcome sponsored support groups to advise ‘sufferers’ of the benefits of the new drug. In the UK, a charity emerged, the Herpes Viruses Association (HVA), which I now work for. It was oblivious to the fact that its appearance had been prompted by a drug-marketing campaign. A helpline was set up and was immediately besieged by newly distraught patients. One said, ‘I wish I had cancer, then at least people would feel sorry for me. As it is, I can’t even tell them what I’ve got.’ The HVA’s first director believed that if he spent two or three years setting the record straight, the charity could then be wound up. Thirty years later, it is still going strong and is needed more than ever.

Genital herpes is now accepted as one of the most stigmatised of all medical conditions. A Harris Interactive poll in the US in 2007 found that 39 per cent of patients were troubled by social stigma and 38 per cent made up excuses to avoid sex during an outbreak, rather than tell a partner. Only HIV was ranked higher for stigma, a truly bizarre finding for a virus that is carried by at least three quarters of the population.

Herpes: common and largely undiagnosed

Herpes simplex is a largely hidden condition because most people get mild symptoms or none at all, so they are not diagnosed. Prevalence is high and one recent study of women between the ages of 35 and 44 found that 85 per cent have HSV-1 and 22 per cent have HSV-2. The HVA divides its time between advising a relatively small number of people who experience recurrent symptoms and reassuring a much larger number about transmission. Symptoms can usually be treated or prevented once people know what to do about them.

A more difficult task is explaining the origin of the stigma and the reasons why it is unnecessary. Marian Nicholson, the HVA’s director said, ‘Over and over again, callers to our helpline say, “I can deal with my symptoms, they don’t bother me, but I am terrified of passing this on to a new partner.”’ Sufferers fear rejection, although an HVA survey has shown that this usually doesn’t happen. The artificially created stigma has caused the problem that has given this charity its raison d’être. Genital herpes is now perceived as a social and sexual death sentence.

Enter the law

So, back to the case of David Golding, a 28-year-old man from Daventry in the English midlands, who was sentenced to 14 months in prison by Northampton Crown Court in August for intentionally infecting his girlfriend with herpes.

The law on grievous bodily harm as currently used dates back to Victorian times. The guideline on intentional or reckless sexual transmission of infection that Crown Prosecution Service offices are supposed to follow states: ‘The courts have recognised that person-to-person transmission of a sexual infection that will have serious, perhaps life-threatening, consequences for the infected person’s health can amount to grievous bodily harm under the Offences against the Person Act 1861.’ It is under this provision that the prosecution proceeded.

The problem is that few sexual health experts believe that genital herpes has serious consequences. The British Association for Sexual Health and HIV (BASHH) has an expert group for herpes simplex. The doctor who advised the court in the Northampton case is not a member of the group. If herpes simplex is serious in any sense at all it is because of the stigma, not the condition itself. As a comparison, influenza is not generally considered to be serious, although it kills thousands of people every year in the UK so is arguably a more serious problem than herpes. The mere existence of some bad cases does not make a condition severe. Over 90 per cent of those with flu or herpes simplex do not have a serious condition. People with severe symptoms deserve and usually get more support, but their experience is atypical.

Peter Greenhouse, who chairs the BASHH media group, said: ‘It’s been a long-held principle – since before the Wolfenden Report – that the law should not seek to interfere or intervene in matters of personal morality or private sexual relationships. Sexual recklessness, as distinct from clear and provable malicious intent, should not be criminalised because passion, by its very nature, is reckless and unpremeditated.’ Greenhouse noted the difficulty of broaching the subject of genital herpes in a new relationship, and added: ‘This prosecution has ramped up the psychological pressure by endorsing and exacerbating the stigma of herpes, making the problem worse for millions of people and increasing the chances of new prosecutions.’

Many people now face a double bind: if they tell a new partner they have genital herpes, they think they may be rejected; if they don’t admit it, they may go to prison.

Most of us have herpes simplex of one type or the other. Both types can cause genital herpes. Almost all sexually active people in the UK could either catch genital herpes or pass it on, usually without knowing. Transmission is difficult to prove but that didn’t stop one man from being persuaded to plead guilty. Northampton Crown Court has unwittingly entered us all in a new National Lottery and the prize is 14 months in prison. Genital herpes just got worse because a court bought into the stigma.

Nigel Scott is head of information at the Herpes Viruses Association.