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West Hertfordshire Sexual
Health Directorate, Watford
and St Albans Sexual Health
Clinics, West Hertfordshire
Hospitals NHS Trust, Watford,
Hertfordshire, UK
Correspondence to
Dr Kilian Dunphy,
Watford Sexual Health Centre,
Watford General Hospital,
Vicarage Rd, Watford,
Herts WD18 0HB, UK;
kilian.dunphy@nhs.net
Received 21 June 2012
Revised 18 September 2013
Accepted 15 November 2013
Published Online First
15 January 2014
▸ http://dx.doi.org/10.1136/
medethics-2012-101119
To cite: Dunphy K. J Med
Ethics 2014;40:793–797.
PAPER
Herpes genitalis and the philosopher’s stance
Kilian Dunphy
ABSTRACT
For many people, living with genital herpes generates
not just episodic physical discomfort but recurrent
emotional distress, centred on concerns about how to
live and love safely without passing infection to others.
This article considers the evidence on herpes
transmission, levels of sexual risk, when the law has
intervened and to what extent health professionals
should advise with respect to these issues. It proposes a
mechanism by which moral philosophy might provide a
rational basis on which to counsel concerning sexual
behaviour.
Genital herpes is a condition caused by infection
with the Herpes simplex virus (HSV). The infection
is sexually transmitted and has the potential to
cause a recurrent, painful, blistering rash in the
genital area and significant physical and psycho-
logical distress in sufferers for many years.
Alternatively, it may provoke a single, trivial rash
which may go entirely unnoticed, or have no exter-
nal effect at all, but generally taking up life-long
residence in the sacral ganglia, bundles of nerve
cells within the pelvis. The infection may be caused
by HSV type 1 or type 2 but globally the majority
of cases are caused by type 1.1 Neonatal infection
has a high mortality and, in addition, genital
herpes is associated with an increased risk of HIV
acquisition by two to threefold, with HIV transmis-
sion on a per-sexual act basis increased by up to
fivefold.2 3 The lowest prevalence is in western
Europe affecting around 18% of women and 13%
of men, and the highest in sub-Saharan Africa with
70% of women and 55% of men.4–8 Around 80%
of those affected are unaware, but the majority can
be taught to recognise symptoms.9 Although those
with a symptomatic presentation may never have
another episode, there is a 60% chance that those
with HSV1 will have a further episode within the
next 12 months with a median time lag of
6 months. Those with a symptomatic presentation
of HSV2 do statistically less well with an 80%–
90% chance of recurrence within the next year,
and a median of four recurrences during this time,
having to wait a median of only 2 months until the
second episode and recurrences occurring four to
six times more frequently than with type 1.10 11
Yet, for many people with genital herpes, the real
suffering is not the reality (or simply the threat) of
recurrent painful blistering in the genital area, but
the awareness that they may pass the infection on,
even when they have no symptoms… it is the per-
ception that they have been transformed into a
sexual leper—that there is a risk that they might
impose a similar experience on others in any future
Dunphy K. J Med Ethics 2014;40:793–797. doi:10.1136/medethics-2012-100894
Criminalising contagion
sexual liaison. This change of one’s sexual identity
into that of a potential agent of harm appears to
echo themes from the fall in the garden of Eden (it
is oddly coincidental that snakes are studied in the
science of herpetology, from the Greek herpein ‘to
creep’), to the sexual subtext of vampire fantasies,
to present day paranoias concerning intentional
HIV transmission. The emotional ramifications of
this are potentially great. A qualitative analysis of
around 2000 questions posed in a herpes chat-
room online over 2 years revealed that the com-
monest single anxiety expressed was the risk of
transmission.12 The authors note that, ‘the most
difficult topic is the psycho-social impact surround-
ing genital herpes’. As a doctor conveying bad news
there is a temptation to avoid compounding the
hurt of a herpes diagnosis with the additional
concern of transmission. Arguably, worries about
avoiding harm to others are not primarily medical
questions but actually moral ones. However, these
are clearly questions that patients want answered.
Certainly, medical knowledge concerning the fact
that a person is shedding virus from the first tin-
gling of prodromal dysaesthesia to the healing of
the last scab confirms that one is infectious
throughout this time and informs the decision con-
cerning whether one ought to be sexually active.
Importantly, however, the decision does not relate
to the health of that individual but to his or her
propensity to inflict avoidable harm on others. In
some circumstances, the degree of harm possible
and either proof of intent to harm or flagrant disre-
gard for possible harm have resulted in legal sanc-
tion. In England and Wales, reckless sexual
transmission of an infection (in the absence of
consent to such a risk) may amount to grievous
bodily harm under the Offences Against the Person
Act 186113 (see 14). After many years of successful
prosecutions relating to reckless transmission of
HIV, 2011 saw the first successful criminal prosecu-
tion in the UK concerning transmission of Herpes
genitalis (in contrast, there have been multiple law
suits in the USA dating back to 1987).15 The con-
viction drew a great deal of criticism from experts
in sexual health and patient action groups.16 17
Given that the defendant pleaded guilty to grievous
bodily harm, legal arguments in his defence were
not heard. These surely would have included diffi-
culties in establishing actual transmission from the
defendant and in demonstrating the necessary
‘recklessness’ of mind as well as squaring the ubi-
quity of the infection (and the probable triviality in
most of those affected) with the severity of a custo-
dial sentence. Following the guilty plea, the defend-
ant (Golding) was sentenced to 14 months in
prison but released pending appeal. The appeal (as
793
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Criminalising contagion
at June 2013) has yet to be heard. It has been suggested that the
threat of criminal liability does not seem an appropriate mech-
anism for dealing with consensual sexual activity in adults. A
major risk is clearly that this would discourage people from
seeking sexually transmitted infection (STI) screening, and
instead foster an atmosphere of secrecy and denial, encouraging
poorly informed sexual activity and generating a profoundly
negative public health impact. Yet, if we are to avoid the involve-
ment of the courts and rely on moral norms of sexual behaviour
to guide our actions as a society, how are these norms estab-
lished and how are they conveyed? One means of conveying
such norms would be for doctors to give advice on when it is
acceptable to be sexually active and with which safeguards. But
what should the content of this advice be?
HOW TO BEHAVE WITH HERPES?
The first issue might be regarded as simply providing medical
information on when one is infectious and when one is not. It
is the application of the answer which involves a moral decision
about preventing harm to others. Avoiding sexual activity from
the onset of symptoms to the healing of the last lesion reduces
spread of infection. Yet, we also know that carriers shed virus in
the absence of a rash for around the same number of days each
year as they have a rash and that most transmissions occur when
there are no lesions evident.18–20 Crucially, we have no clue as
to which are the infectious days. In other words, the blistering
rash, which is a badge of infectivity, can only be used to avoid
half the infectious days in any set period of time. Thus, the
straightforward advice to avoid sex when you are infectious
transforms into a risk ratio. If the number of days on which
you have a herpetic rash in any 1 year is x then the proportion
of the year during which you are infectious is 2x/365.
Assuming you avoid sex on the days that you have a rash, the
chance of you shedding virus on any particular other day will
be x/(365−x). This information is just that—information. It
seems relatively uncontentious that doctors should provide at
least this level of insight for three reasons. The first is that
patients regularly ask for it in an attempt to understand the
implications of their infection. The second is that courts of law
may expect that medical attendants will provide sufficient infor-
mation to their patients on risks of transmission as part of their
duty of care and, as a separate issue, courts can only assess ‘reck-
lessness’ on the basis of proof that the defendant received and
understood information on the size of the risk of passing on
their infection to a sexual partner. The third is that doctors have
a public health responsibility not simply to their patient but to
prevent or mitigate harm to the wider population.
But information on frequency of viral shedding does not
cover the extent of viral shedding. Lesions appear when shed-
ding crosses a threshold level, but below this level asympto-
matics may shed as many viral copies as symptomatics.18
Neither does the combination of the two provide direction on
thresholds of acceptability. The value that x takes in the equa-
tion above may change our perception of whether the risks of
having sex are small (some individuals may shed virus for only a
day or two/year) or so large as to suggest that any unprotected
sexual activity exhibits a reckless disregard of the risks involved
(on average, within the first year of infection, viral shedding
occurs a third of the time).19 Clearly some take greater risks in
life than others, but generally these are risks to one’s own
health or welfare, not to that of others. Some may feel that it is
always wrong to play roulette with someone else’s health. They
might say that the only certain way of avoiding passing on infec-
tion is sexual abstinence. Yet, this seems a high a price to pay.
794
Several levels of risk-taking then might be identified.
1. Sexual abstinence: No risk of HSV transmission
2. Sexual activity with HSV positive partners only (eg, through
herpes dating websites): Perception of no risk but maybe
increased risk of acquiring alternative HSV type
3. Full disclosure associated with:
A. Checking HSV antibody status of partner: HSV2 posi-
tive, then carriers with no risk of acquiring HSV2, but
susceptible to HSV1; HSV1 positive then vice versa;20
HSV1 positive woman, HSV2 risk reduced by <20%21
and more likely asymptomatic
B. Using condoms: Risk reduced by approximately 50%22 23
C. Taking prophylactic antiviral: Risk reduced by 50%–
70%24–26
4. No disclosure, use of precautions as above
5. No disclosure, no precautions: Risk of HSV2 exposure 20%
per episode.18 19 27 Median time to HSV2 acquisition
60 days.28 Risk of transfer in long term relationships 18%
per annum M>F 5% F>M.29 30
Only the least morally athletic will fall foul of the bar set at
level five. A model of this is set out in the Crown Prosecution
Service’s guidelines on the circumstances in which it would
prosecute on the basis of reckless transmission of an STI.31
Under this guidance, the person must have foreseen that the
other person might contract the infection via sexual activity but
nevertheless has recklessly proceeded to run that risk. Relevant
to an assessment of recklessness is the level of risk of transmis-
sion and this can vary based on the number of exposures and
the nature and status of the infection. Only where it can be
shown that the defendants knew how infectious they were and
also knew that any safeguards employed were inadequate to the
risk will it be likely that the prosecution would be able to prove
recklessness. This does not amount to intentional transmission
of the infection, but to a substantial disregard concerning
whether or not the infection would be transmitted. Successful
prosecution requires not only that infection may have been
passed in this way, but that it actually was passed in this way,
beyond any reasonable doubt (ie, the criminal, not the civil,
standard of proof ).
Can we construct a case for an agreed intermediate level of
moral responsibility (around level three) which does not
demand the self-sacrifice necessary to cross the high bar (level
one), but aims higher than the minimal level of moral concern
required to hop over the low bar (level five)?
MORAL MODELS
Systems of moral philosophy can be formulated in many ways.
Models of morality are commonly broken down into (1) rule-
based systems and (2) outcome-based systems. The most familiar
systems based on rules would be the ten commandments of the
Judaeo-Christian tradition or the moral injunctions found within
the text of the Koran for Moslems. Immanuel Kant constructed a
secular system built upon the basic premise, ‘Act only according
to that maxim whereby you can, at the same time, will that it
should become a universal law.’32 The similar proposition that
we should treat others as we would wish to be treated ourselves
has been promoted under the guise of the ‘golden rule’ and
claimed in one form or another by most religious traditions since
the age of antiquity. If, for example, we would not wish to lose
our own life, then we must have a rule which prohibits killing.
Yet, many have suggested that rules are arbitrary and situations
often too complex to allow of anything other than the most
general and watered-down of injunctions. Thus, even the strict
injunction ‘Thou shalt not kill…’ requires multiple caveats in
Dunphy K. J Med Ethics 2014;40:793–797. doi:10.1136/medethics-2012-100894
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most societies…. other than in a just war, in self-defence, as an
ultimate sanction within a judicial system, in utero prior to life
independent of the mother, as ‘mercy’ killing and so on. What
would be the equivalent injunction with respect to herpes? Thou
shalt not engage in sexual activity while thou hath a blistering
rash? This invites a series of retorts. What if the partner is
already immune? How about using a condom? Where does
asymptomatic shedding fit in? How can one even be sure it is
herpes? Any attempt to provide more specific response to these
questions may then generate further protest in terms of the prov-
enance of this authority—‘Says who?’
MORAL MATHS
Critics claim that rule-based systems are too inflexible and insuf-
ficiently sensitive to actual outcomes in the real world. Thus,
the other major conception of morality is based on outcomes
rather than rules—so-called ‘consequentialism’. The most prom-
inent of exponents has been John Stuart Mill in the specific
application that has become known as ‘utilitarianism’.33 By this
conception, the moral appropriateness of any action is defined
by its outcome, either in terms of its utility or the net happiness
of those affected by the action. His teacher and mentor, Jeremy
Bentham, went as far as trying to express this mathematically in
what he termed the ‘felicific calculus’. He proposed that the
pleasures or pains that derived from particular actions could be
quantified by identifying seven criteria—(1) Intensity, (2)
Duration, (3) Certainty, (4) Propinquity (nearness), (5)
Fecundity, (6) Purity and (7) extent.34 Many have baulked at the
idea that moral judgments can be adequately encapsulated in an
equation. Yet, we have already encountered an equation relevant
to the transmission of genital herpes that might lay claim to
moral relevance.
A bad outcome with respect to the sexual activity of a man or
woman with genital herpes would occur should they have mul-
tiple sexual partners who all develop herpes themselves
(Bentham’s ‘fecundity’ measure) and suffer severe frequent
painful recurrences (intensity and duration). This would charac-
terise sexual promiscuity in these circumstances as morally culp-
able. An even worse outcome would ensue if these sexual
partners themselves had multiple partners and spread the infec-
tion far and wide (the ‘extent’ measure). The necessary geomet-
ric progression of summative harm in a growing population
caused by an STI, which does not impact on fertility, would
seem to make the act of passing the initial infection with the
newly mutated virus more and more morally culpable. As a
judgment, this may seem a little harsh and may not pass the
commonsense test.
Taking a slight step backwards, and looking at risk within a
single sexual network, a mathematical model involving a thresh-
old concept could be constructed by suggesting that once a
carrier drops below a transmission risk no greater than that
posed by a random sexual encounter with an unscreened casual
partner, one might no longer need to declare one’s HSV status.
In the UK, HSV2 may be carried by 10%–15% of the popula-
tion who initially shed virus 30% of the time,17 that is, risk of
exposure with casual unscreened partner 3%–5% on each occa-
sion. Thus, an identified carrier, once shedding virus less than
3%–5% of the time, would statistically pose a lower risk of viral
transfer than a random casual partner. Unfortunately, best evi-
dence suggests that HSV2 carriers are still likely to be shedding
virus 10% of the time even after 10 years.18 19 A sporadic
shedder in a high prevalence area would dip below the probabil-
ity curve but the maths is contentious, and relying on others to
pose a greater risk than oneself seems less than morally robust.
Dunphy K. J Med Ethics 2014;40:793–797. doi:10.1136/medethics-2012-100894
Criminalising contagion
A NEW VIEW
Deontology (rule-based morality) and consequentialism have
been hugely influential in the development and analysis of
moral philosophy. Both have their supporters and detractors.
The limited critique above is intended only to show that their
application to the issue of ‘how to behave with herpes’ presents
clear problems. It may be helpful to explore a different
approach which does not rely on rules (as a starting point) or
outcomes (in retrospect). One such alternative mechanism for
systematising questions of morality is the social contract model.
In 1971, John Rawls published his Theory of Justice35 which
proposed a system of distributive justice within society based on
a set of rules as they might be established by a community as it
were in utero, unaware of their future sex, race, social status,
wealth, intellectual ability and so on. In this Original Position
they would be covered by a ‘veil of ignorance’ but design, never-
theless, a system of wealth distribution to which they would all
be content to subscribe. Rational self-interest would ensure that
no one would want to risk becoming a member of an underclass
with fewer rights than others. Through this mechanism, Rawls
proposes a fundamental principle establishing equality of assign-
ment of rights and duties for all. A secondary principle emerges
which rewards endeavour and allows differences in wealth to
emerge which are tolerated by the society as a whole as long as
this works to the advantage of all in society, even the least able.
Rawls intended the Original Position to be a thought exercise,
an intellectual abstraction given that we cannot be effectively
blinded to our race, gender and social status.36 Interestingly,
however, if we apply the same construct to the more limited
area of sexual activity, being blind to our HSV status is possible
—indeed probable.9 It could be feasible to construct a system of
‘rules’ of sexual engagement for those genuinely uncertain of
whether they carry the HSV virus or not, but to which they
would be prepared to subscribe either way. As a thought exer-
cise, the questions and answers might be imagined thus. From
your original position, beneath your veil of ignorance, would
you wish to minimise opportunities for viral transmission? Yes,
certainly. Would you wish to effectively extinguish all opportun-
ity for viral transmission by preventing viral carriers from
having sexual intercourse, or ensuring that they only do so with
sero-concordant partners? No, certainly not. Why not? Because
I might turn out to be a viral carrier and this would either mean
‘no sex, ever’, or at best reduce my potential pool of sexual/life-
time partners by between 50% and almost 90% (depending on
local HSV prevalence). Additionally, the virus would not be
extinguished as it would continue to be passed orally through
social kissing.
We are, at least in part, sexual beings and might regard sexual
activity as a ‘good’ within the goods of life. At the same time we
share a mutual interest in not being harmed by others. Thus, the
principle which might emerge from such an exercise, analogous
to Rawls’ fundamental principle of social justice, could be
framed as ‘an equality of sexual opportunity allied with a
responsibility to avail of appropriate safeguards’. Might it give
us specific answers to specific questions? Arguably, yes. From
either side of the fence, it would seem inappropriate to engage
in sexual activity during a symptomatic episode, and use of
condoms at all other times (in non-committed relationships)
might receive general support. Exacerbation of vulnerability
during pregnancy may make the same safeguards even more
important at that time.
At what point does disclosure become mandatory? Respect
for autonomy and informed consent have a lofty role in modern
medical ethics, but this Rawlsian perspective may change that.
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Criminalising contagion
The bold assertion from one side of the Original Position that ‘I
would want to know...’ might become, from the other side, a
more meekly expressed ‘How soon would I have to tell...’
Remember that this is not a transaction between a powerful
physician and a vulnerable patient requiring some rebalancing of
power, but a tentative conversation between two equal but dif-
ferently vulnerable individuals. It seems likely that our protag-
onist from his/her original position, provided appropriate
safeguards were taken, would not insist on disclosure from the
outset. What they might insist upon would be disclosure at the
point that such protection failed or was wilfully omitted.
RAWLS FOR REAL
In this form, the exercise is conjecture. However, given that the
peculiarities of the virus allow for the probability of a large
number of people who are genuinely in the original position of
having no clue as to their HSV status, the thought experiment
could transform into an actual exercise in social contract. Rawls
himself described a mechanism by which real societies could con-
struct real rules based on the deliberations of specific groups
charged with this responsibility. Groups could be formed within
communities around which sexual networks might coalesce (such
as schools, colleges, larger workplaces). The veil of ignorance
should shield from knowing gender, race, sexual orientation,
physical attributes, abilities/disabilities, whether sexually active or
otherwise, as well as one’s HSV status. Those who know their
status, as a result of recent testing, could be included on the basis
that everyone’s views count and that societies reach durable con-
sensus through the sum of the self-interest of its stake-holders.
But this was not Rawls’ idea. Rational actors, in a state of knowl-
edge, might design a system that benefited the majority, as the
majority would vote for propositions in their own self-interest.
Rational actors, in a state of ignorance, however would have a
more equitable concern for minority interests given their aware-
ness that they might find themselves within such a minority.
Hence, inequalities would not be tolerated on the basis that they
served the interests of the majority but only when they benefit
everyone in the community. For this reason, those with a firm
conviction that they do, or do not, have the virus (even though
they may be wrong) should be excluded from such a Rawls
group, so that all within the group are as blind to their HSV
status as possible. (In most communities, chances of carrying the
HSV1 virus are indeed finely balanced at around the 50% mark.)
The group would then be invited to come up with a set of ‘rules
of engagement’ concerning sexual activity in a range of scenarios
in which herpes may be an issue, covering areas such as disclos-
ure, condom use, testing and prophylaxis. Rational self-interest
would then guide them to agree guidelines which would appear
just, and to which they would be content to adhere, irrespective
of whether they subsequently discovered themselves to carry the
virus or not. Note also, that although these considerations have
materialised into quite specific rules, the provenance of these
rules is nevertheless explicit and defensible.
In a sense, this might naturally transcend the issue of ‘how to
behave with herpes’ and become more a ‘user’s guide’ to how to
have sex in general. In 2012, Burris and Weait37 proposed a
similar Rawlsian exercise with respect to HIV in attempting to
address the wisdom of criminalising sexual transmission of that
infection. They proposed a thought experiment in which people
are ignorant of ‘gender, sexual preference, power, wealth, HIV
status, psychological and emotional capacities’ with a goal ‘to
construct a set of rules of conduct that create a world in which
the burdens and benefits of sex in the context of HIV are fairly
distributed, allowing inequalities only when they benefit
796
everyone in the community.’ One of the most interesting pro-
ducts of this analysis is the way in which it implicitly removes the
moral responsibility for HIV transmission from being entirely
that of the individual with HIV to that of the society as a whole
through the sexual norms it establishes. With respect to the ques-
tion as to whether sexual behaviours should be governed by diag-
nostic labels it may be noted that one of the ‘rules’ established by
a Rawls group might be a requirement that people would dis-
cover their HSV status, a moral expectation that they should do
so or a respected freedom to opt out of such awareness.
However, if most people decide they would rather not know and
a state of ignorance were generally favoured above awareness
then the system may be seen to be operating too punitively
against those aware of viral carriage, promoting viral transfer and
effectively working against the interests of the community. The
community, incidentally, could be of any size and there is no
reason why communities around the globe, or a global commu-
nity, should not support essentially the same set of moral norms
with respect to sexual activity with herpes. While there is a
tension between moral commonality and relativism,38 arguably
the moral choices that we tend to make are largely consistent
across societies (not necessarily in terms of sexual behaviours but
in terms of more fundamental issues such as our attitude to
causing harm to others) and those collective choices will tend to
gravitate to areas of common ground.
The charge may be made that this is no more than a paternalistic
moral prescription under the guise of health advice, jogging the
legitimate area of concern of medical ethics from the conduct of
health professionals to that of their patients, and further adding to
the burdens of those with the virus. It is none of these things.
Rather, it is a consensual person-centred exercise in social contract
legitimised by patients seeking advice on norms of reciprocal
sexual behaviours and by our appropriate professional concerns
for public health. With these aims in mind, we might make a
modest proposal for a collaborative exercise in clarifying the rights
and responsibilities of those with and without HSV, either within
the sexual marketplace or within enduring relationships. These
rights and responsibilities must be equally acceptable to those both
with and without the virus from beneath their veil of ignorance.
Such an exercise in constructing a social contract concerned with
‘How to behave with Herpes’ and based on Rawlsian principles
could be conducted by establishing Rawls groups in different com-
munities anywhere in the world. The success of any such venture
might be judged first by the extent to which those who carry the
virus find any guidance produced helpful in transactions with
actual or potential sexual partners, and second by the extent to
which others feel its advice adequately protective and appropriate.
Even without this additional exercise, the Rawlsian perspective
arguably provides a better basis to advice on sexual activity with
respect to STI risk than either more traditional deontological or
consequentialist approaches. It may be noted that the arguments
herein may be applied to other STIs including HIV but that the
discussion has been restricted to the HSV in order not to further
complicate the issues.
One of the merits of Rawls’ thesis is that it derives moral
statements from the practical bedrock of rational self-interest. In
a world in which people expect to be respected as independent
moral agents, but are suspicious of the content of paternalistic
moral codes, a communitarian approach may provide an accept-
able framework to guide the actions of many. It seems plausible
that a moral code that does not moralise but appeals directly to
our ability to place ourselves in others’ shoes will find some
general sympathy, especially should we discover those shoes to
be, in fact, our own.
Dunphy K. J Med Ethics 2014;40:793–797. doi:10.1136/medethics-2012-100894
 Downloaded from http://jme.bmj.com/ on June 13, 2015 - Published by group.bmj.com
Correction notice A sentence from the first page of this article has been modified
for further clarification.
Acknowledgements I would like to thank Pat Munday for comments on an early
draft and to the editors for helpful suggestions and advice.
Competing interests None.
Provenance and peer review Not commissioned; externally peer reviewed.
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Herpes genitalis and the philosopher's stance

Kilian Dunphy

J Med Ethics 2014 40: 793-797 originally published online January 15,
2014
doi: 10.1136/medethics-2012-100894

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