Herpes and the law: can you be prosecuted for passing it on?

Yes, in some circumstances. In England and Wales, passing on a sexually transmitted infection can be charged as grievous bodily harm under the Offences Against the Person Act 1861. The Crown Prosecution Service (CPS) says the prosecution must prove that:

• the other person caught an STI serious enough to count as really serious harm
• you had been diagnosed with the STI at the time
• you knew you had it
• you meant to pass it on, or saw the risk and went on to take it unreasonably
• you did in fact pass it on to them

Proving who passed on an infection is difficult and needs expert evidence. For Herpes, if two people have different types of the virus, transmission between them is ruled out.

There are two offences:

• Reckless transmission (section 20): you knew there was a risk of passing on the infection and unreasonably took it. The maximum sentence is 5 years in prison.
• Intentional transmission (section 18): you meant to pass it on. The maximum sentence is life. In 2014 the Law Commission called this a very rare situation.

The CPS says that if someone knows they have an STI and has sex without safeguards, it can usually be inferred that they saw the risk. Every decision to charge, or not to charge, has to be approved by a senior prosecutor.

There’s no legal requirement to tell a partner that you have an STI. But it matters. In England and Wales, if your partner knew you had Herpes and consciously accepted the risk, their informed consent is a defence to reckless transmission, although not to intentional transmission. A partner can be informed without you telling them, for example if they’ve seen sores.

Doctors recommend telling partners in all relationships. UK guidelines say that telling a partner you have Herpes may cut the risk of passing it on by about half. Read more in “Can you tell a partner anonymously they need an STI test?”

The CPS says that if you used appropriate safeguards throughout, and medical experts would expect them to prevent transmission, it’s highly unlikely the prosecution could show you were reckless. It describes correctly taking daily antiviral medicine as an appropriate safeguard against passing on Herpes.

Medically, safeguards lower the risk but don’t remove it:

• Condoms reduce the risk, but Herpes can still pass on from skin they don’t cover. In one study, condoms cut the chance of passing HSV-2 from men to women by 96% each time a couple had sex, and from women to men by about 65%.
• Daily antiviral medicine (valaciclovir) cut new HSV-2 infections by about half in a study of heterosexual couples where one partner had HSV-2.
• Avoiding sex from the first tingle or itch until sores have fully healed lowers the risk further.

In R v Golding, a man pleaded guilty in 2011 to recklessly inflicting grievous bodily harm after giving his partner genital Herpes. He knew he had Herpes but hadn’t told her, and he was jailed for 14 months.

In 2014, the Court of Appeal upheld his conviction but cut his sentence to 3 months, because of delays in the case. It said the painful symptoms, the outbreaks and the prospect of them coming back indefinitely were enough for a jury to decide it was really serious harm. But it also made clear that in each case this is a question for the jury.

Scotland

The charges are assault, if someone meant to pass on an infection, or culpable and reckless conduct. The Crown Office says there have been very few prosecutions. A partner’s consent isn’t a defence in Scots law, but there’s a strong presumption against prosecuting if they knew about the infection and freely accepted the risk. Its policy covers infections with serious, potentially life-threatening consequences and doesn’t mention Herpes.

Northern Ireland

The same 1861 Act applies, but the maximum sentence for reckless transmission (section 20) is 7 years. We couldn’t find a published prosecution policy on STI transmission.

Herpes is very common, and many people who have it don’t know. In England, there were 28,779 diagnoses of first episode genital Herpes in 2025, up 3% on 2024. HSV-1, the type that also causes cold sores, is now the most common cause of genital Herpes in the UK.

Only about 1 in 3 people get symptoms when they first catch HSV-2, and Herpes can pass on when there are no symptoms at all. UK guidelines say people who don’t know they have Herpes are more likely to pass it on than people who do. Read more in “How long does a Herpes outbreak last?”

You can lower the chance of passing on Herpes:

• Tell your partners, so you can decide together how to protect them.
• Avoid vaginal, anal and oral sex from the first tingle or itch of an outbreak until the sores have fully healed.
• Use a condom every time, and put it on before any genital contact.
• Ask a doctor about daily antiviral medicine. The NHS says people who have more than 6 outbreaks a year may benefit from taking it for 6 to 12 months.
• Don’t have oral sex if you have a cold sore, as you could give your partner genital Herpes.
• Don’t share sex toys.

The NHS says the risk of passing on Herpes when you don’t have symptoms is higher in the first 6 months after infection and is rare after 2 years.

Better2Know offers:

• Herpes Simplex Type 1 and 2 (Swab): tests a swab from a sore on or around your mouth or genitals for Herpes 1 and Herpes 2, with results in 5 days. You can book it at one of our clinics or order it as a home test kit.
• Herpes Simplex Type 1 and 2 (IgG): a blood test for antibodies to Herpes 1 and 2, from 28 days after possible exposure, with results in 2 days. It’s also available as a home test kit.
• Platinum Screen: tests for 12 infections, including Herpes 1, Herpes 2, HIV and Syphilis, from 28 days after sex, with results in 3 days.

A swab of a sore is the best way to diagnose Herpes. Blood tests can help in some situations, but they can take time to turn positive and can’t show where on the body the infection is. If you test before 45 days, a negative HIV result needs a repeat test. A Syphilis test in the first 3 months after sex can miss the infection, so you may need a repeat test. Not sure which test you need? Our Patient Care Team is available 24/7 on 020 7099 0955.

Can I be prosecuted if I didn’t know I had Herpes?

Not in England and Wales. The prosecution must prove you knew you had the infection at the time, and this is usually shown by a diagnosis. But the CPS says people who choose not to get tested won’t necessarily avoid prosecution if everything points to them knowing they were infected, for example if they had clear symptoms.

What can I do if I think a partner knowingly gave me Herpes?

You can report it to the police, who would investigate with prosecutors. A solicitor can explain your options. Remember that many people with Herpes don’t know they have it.

Is it a crime to have sex with Herpes if I don’t pass it on?

In England and Wales, the reckless offence only applies if the infection is passed on. The CPS says it’s possible to attempt to pass on an STI deliberately, but not recklessly. In Scotland, the Crown Office may prosecute exposure without transmission in exceptional cases.

Passing on Herpes can be a crime in the UK, but only in narrow circumstances. The law, like good sexual health, comes back to the same things: knowing your status, telling partners and taking sensible precautions. If you’re worried about a legal case, speak to a solicitor.

Book a Herpes swab test at a clinic near you if you have a sore. Our Patient Care Team is available 24/7 on 020 7099 0955.

Not in the UK? Choose your country from the selector at the top of the page for local tests and prices.

This article originally appeared on 25 January 2013 and was last updated on 1 October 2026.

This article is general information and not a substitute for personal medical advice.

Sources

1. Crown Prosecution Service, Intentional or reckless sexual transmission of infection, updated 29 March 2023. https://www.cps.gov.uk/prosecution-guidance/intentional-or-reckless-sexual-transmission-infection
2. Crown Prosecution Service, Offences against the person, incorporating the charging standard, updated 26 February 2026. https://www.cps.gov.uk/prosecution-guidance/offences-against-person-incorporating-charging-standard
3. Offences Against the Person Act 1861, section 20. https://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/20
4. Offences Against the Person Act 1861, section 18. https://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/18
5. R v Golding [2014] EWCA Crim 889, Court of Appeal, 8 May 2014. https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/889
6. R v Dica [2004] EWCA Crim 1103, Court of Appeal, 5 May 2004. https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1103
7. Law Commission, Reform of offences against the person: a scoping consultation paper, summary, 12 November 2014. https://cdn.websitebuilder.service.justice.gov.uk/uploads/sites/54/2025/12/Offences-against-the-Person-Summary-of-scoping-consultation.pdf
8. Crown Office and Procurator Fiscal Service, Prosecution policy on the sexual transmission of infection, 1 July 2014. https://www.copfs.gov.uk/publications/prosecution-policy-on-the-sexual-transmission-of-infection/html/
9. NHS, Genital herpes, reviewed 27 June 2023. https://www.nhs.uk/conditions/genital-herpes/
10. NHS, Cold sores, reviewed 19 February 2024. https://www.nhs.uk/conditions/cold-sores/
11. British Association for Sexual Health and HIV, UK national guideline for the management of anogenital herpes, 2024. https://www.bashh.org/_userfiles/pages/files/pateletal2024britishassociationofsexualhealthandhivuknationalguidelineforthemanagementofanogenital.pdf
12. UK Health Security Agency, Sexually transmitted infections and screening for chlamydia in England: 2025 report, 2 June 2026. https://www.gov.uk/government/statistics/sexually-transmitted-infections-stis-annual-data-tables/sexually-transmitted-infections-and-screening-for-chlamydia-in-england-2025-report
13. World Health Organization, Herpes simplex virus, 30 May 2025. https://www.who.int/news-room/fact-sheets/detail/herpes-simplex-virus