How far should lawmakers go to protect people from being infected with conditions like herpes while having unprotected sex?

A charge of aggravated assault laid recently against a man with HV-2 genital herpes has raised concern among legal experts.

James David Hogg, 35, of Toronto allegedly had consensual, but unprotected, sex with a 28-year-old woman on March 8, 2011, while knowing he had genital herpes.

Det. Greg Forestall told the Toronto Star that he felt he had enough evidence to lay a charge after consulting a crown attorney.

“If you don’t disclose it’s called exposure without disclosure,” he said.

The detective said that although the disease is not fatal the harm it can cause is substantial because there is no known cure for herpes and the victim is subject to “lifelong suffering,” Forestall said.

“This is the criminal law run amok,” criminal defence attorney Jonathan Shime protested, adding that genital herpes is not like HIV or AIDS, which carry significant risk of bodily harm.

Shime is part of a working group of lawyers and activists urging the Attorney General to issue prosecutorial guidelines for HIV non-disclosure — and cases of genital herpes would fall under his group’s call for action.

“The police just don’t get it,” the lawyer said. “They are undereducated about sexually transmitted infections. Who knows what’s going to be next: Genital warts?”

Shime is not alone in questioning police for charging those who may have spread the herpes virus.

Cécile Kazatchkine, a policy advisor with the advocacy group Canadian HIV/AIDS Legal Network, argues that such matters are a public health issue, not a criminal matter.

“The fact that people are now charged for not disclosing other sexually transmitted infections like herpes confirms a very worrying tendency in Canada to use the criminal law to deal with communicable diseases,” Kazatchkine said.

The Supreme Court ruled in 1998 that HIV-positive people have a legal duty to disclose their status to sexual partners — a ruling that laid the groundwork for convicting Hamilton’s Johnson Aziga of two counts of first-degree murder.

More that 130 people living with HIV have faced criminal charges, but only a few of the non-AIDS cases have gone before the Canadian courts, according to Kazatchkine.

Kazatchkine said she is aware of one case of hepatitis B in 2010 concerning an Ontario man who had unprotected sex without disclosing his medical condition to two complainants from PEI (he pleaded guilty), one of hepatitis C in New Brunswick (the accused was acquitted) in 2002, and one other herpes case.

Last year, in a case still before the courts, Master Cpl. Mathew Wilson, was charged in Ottawa after military police alleged he knowingly infected six women in Perth, Kingston and Ottawa with herpes from 2004-2009.

In one case that went all the way to the Ontario Court of Appeal in 2010, John Sherman’s 12-month jail conviction was upheld on a criminal negligence charge for having repeated unprotected sex with a complainant when he knew he had herpes.

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“The police are in untested waters,” said his appeals lawyer, Damien Frost. “This is a lot different from HIV. Herpes doesn’t endanger anyone’s life as far as I know.”

Alan Young, a professor at Osgoode Hall Law School, said a charge for spreading herpes is a “difficult” issue for the courts because herpes “is certainly not in the same ballpark as HIV/AIDS.”