can you go to jail for giving someone herpes

Can You Go to Jail for Giving Someone Herpes?

The short answer is – it’s complicated. While there are no specific laws criminalizing the transmission of herpes, there are some circumstances where passing on an STD like herpes could lead to criminal charges or a lawsuit. Let’s break it down.

What Is Herpes?

Herpes refers to two common viral infections – herpes simplex virus type 1 (HSV-1) and herpes simplex virus type 2 (HSV-2). HSV-1 typically causes oral herpes, resulting in cold sores on the mouth and lips. HSV-2 usually leads to genital herpes with painful sores in the genital area (1).
Once infected with either virus, it stays in your body forever and can reactivate to cause recurrent outbreaks. While antiviral meds can help manage symptoms, there is no cure for herpes at this time.
It’s also possible to transmit herpes to a partner even when you have no visible sores. This is called asymptomatic shedding. Condom use decreases – but does not eliminate – the risk of transmission.

Is Transmitting an STD a Crime?

Simply having herpes or passing it to someone else is not a crime in and of itself. There are no laws that explicitly make it illegal to transmit a sexually transmitted disease (STD) to another person.
However, there are some exceptions where transmitting an STD may have criminal repercussions:

• If you knowingly transmit herpes or another STD to someone else without informing them of your infection, it could potentially be considered criminal assault or battery in some states
• Transmitting an STD to a minor may lead to criminal charges like corruption of a minor or unlawful sexual contact with a minor
• If you acquired herpes in the context of a sexual assault, the assailant could face criminal charges for the assault itself and for any resulting STD transmission

The key issue is consent and disclosure. Transmitting an STD to someone who consents to sex, while fully aware of the STD risk, is very unlikely to be considered a crime. Failing to disclose or lying about an STD to obtain consent could potentially be criminal.

Can You Sue Someone for Giving You Herpes?

While transmitting herpes is not necessarily a crime in itself, you may be able to pursue civil charges by suing someone who infects you with herpes or another STD.
The most common civil causes of action in STD transmission cases are:

• Negligence – Did the defendant fail to disclose their STD status or take reasonable precautions to prevent transmission?
• Battery – Was consent for sex obtained fraudulently by failing to disclose STD status?
• Intentional/Negligent infliction of emotional distress – Did contracting an incurable STD cause significant emotional trauma?

To successfully sue for herpes transmission, you typically need to prove:

1. The defendant was aware they had herpes
2. They failed to inform you or took actions likely to result in transmission
3. You contracted herpes from the defendant
4. You experienced harm as a result of the herpes infection

The amount of damages awarded in STD transmission lawsuits varies widely. One plaintiff was awarded $900,000 after proving her ex-boyfriend infected her with herpes and hid his HSV status (2).
However, these cases can be tricky to litigate. The stigma of herpes sometimes prevents victims from coming forward. And it can be difficult to conclusively prove who transmitted the virus.

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What About Suing for Emotional Distress?

Plaintiffs sometimes sue partners who transmit STDs like herpes for negligent or intentional infliction of emotional distress. The idea is – contracting an incurable virus can cause significant emotional trauma above and beyond ordinary breakup distress.
However, courts set a very high bar for what constitutes “extreme” emotional distress in these cases. Symptoms like depression or anxiety may not be enough. Physical symptoms like vomiting, headaches, or sleep disturbances carry more legal weight as evidence of emotional damage (3).
The strength of your case often depends on how well you can quantify the emotional impact of an STD diagnosis. Working with a mental health professional to document your symptoms will strengthen your argument for emotional damages.

What Defenses Can Be Raised in STD Lawsuits?

Defendants in herpes and STD transmission suits have several legal defenses which may defeat a plaintiff’s claims:

• Consent – Can argue the plaintiff accepted the STD risk by consenting to unprotected sex
• No duty to disclose – In some states, partners have no duty to disclose STDs to casual sex partners
• No evidence of harm – Plaintiff can’t prove they experienced any injury from the STD
• Speculative source – Can’t conclusively prove who transmitted the STD, could’ve come from someone else

Whether these defenses succeed often comes down to the precise language of state laws and the context of the sexual relationship. For example – long-term partners typically have higher disclosure duties than Tinder hookups.

What About Suing for Child Support?

An interesting question arises when a woman contracts genital herpes from a male partner and later has a child. Can the father be compelled to pay additional child support related to complications from the herpes infection?
At least one court has ordered a father to pay higher monthly child support because the child required a C-section delivery due to the mom’s herpes status. The judge agreed the extra costs were a “reasonable and necessary expense” attributable to the father’s negligence in transmitting herpes (4).
However, results vary widely in different states. Some courts view additional costs from STD complications as no different than ordinary pregnancy expenses which both parents must share.

What About Criminal Transmission of Other STDs?

While herpes itself does not often lead to criminal charges, knowingly transmitting other sexually transmitted diseases like HIV can be prosecuted as a felony in many states.
Laws enhancing penalties for exposing others to HIV were passed during the 1980s AIDS epidemic when transmission carried deadly consequences. But most of these HIV criminalization laws remain on the books today.
As of 2022, 37 U.S. states have laws making it a crime to knowingly expose others to HIV without their consent. Charges can include reckless endangerment, attempted murder, bioterrorism, and more.
Punishments for HIV exposure vary but can include years in prison even when no transmission occurs. Actual transmission escalates charges to more serious felonies in some states.
While technically possible, prosecutions related to transmitting less serious STDs like herpes remain relatively rare. However, the stigma associated with STDs still fuels calls to criminalize all deliberate disease transmission.
Several states have proposed bills making it a felony to expose partners to any STD without consent. But most public health experts argue criminalization deters testing and makes disease tracking harder.

Can You Go on the Sex Offender Registry for Transmitting an STD?

At least 13 states require convicted sex crime offenders to register as sex offenders. Could transmitting an STD force you onto the sex offender registry?
Possibly – but only if the STD transmission occurs in conjunction with an underlying sexual offense like sexual assault or sex with a minor. Simply passing on an STD to a consenting adult would not require offender registration.
However, related crimes like criminal transmission of HIV sometimes mandate listing on the state’s sex offender registry, even between adult partners. Several states are even proposing expanding their registries to include all STD transmitters.
While rare, there have been isolated cases of individuals forced to register as sex offenders solely due to exposing a partner to an STD (5). How courts penalize STD transmission seems likely to keep evolving.

Final Thoughts

While transmitting STDs like herpes is not automatically a crime, there are potential legal repercussions under certain circumstances. Knowingly exposing others to an STD without consent may open you up to a lawsuit or, less commonly, criminal charges.