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On 8 May 2014 the Court of Appeal dismissed the appeal of David Golding against a 14 month prison sentence for transmitting herpes to his partner. 1 Golding had pleaded guilty at his original trial and so the evidence was never put before a jury. In pleading guilty the defendant admitted both that he had transmitted the virus to his partner and that this amounted to grievous bodily harm, something he later regretted. He appealed against the conviction and against the sentence. The court reduced the sentence to three months on the basis of the delays in hearing the appeal. It did not think that 14 months was unreasonable.
Golding was convicted on the basis of section 20 of the Offences Against the Persons Act 1861, under which all convictions for transmitting HIV have been achieved. 2 To get a conviction in a trial the Crown would have to have shown that three key tests were met: that he had transmitted herpes to his partner, that the result of the transmission was "(really) serious harm," and that the defendant foresaw some harm-though not necessarily its extent-but took the risk anyway. 3
Determining how and when an infection with genital herpes occurred is usually difficult and often impossible. The difficulties of an expert witness trying to help the court cannot be underestimated, and different experts may not agree on the source, timing, or impact of the condition. There are many potential pitfalls.
Whether genital herpes amounts to "serious harm"...