Roger-Luc Chayer (Image : AI / Gay Globe)
I recently came across a Facebook post from someone who was very worried about herpes, which I’m sharing here in order to clarify some inaccurate information she was publishing.
“I admit that I’m very unpleasantly surprised 😰 Today I had a conversation with a girl who has herpes. We argued. On my side I was saying that this disease is notifiable, on her side she was saying that no, you’re not obliged to declare this disease to your sexual partners. I did some research on the Internet and I discovered that she is the one who’s right. It’s not mandatory to declare it when you have herpes! I find that outrageous, it goes beyond me, come on! If I have to sleep with a guy who has herpes, I certainly want to know! Because it will make all the difference: I will NOT sleep with him. Even if he’s super handsome, super refined, I won’t sleep with him, even with a condom. Yes, I want to know! Herpes is for life. Impossible to get rid of it, it’s irreversible. We don’t mess around with that! But it’s not notifiable… come on, I’m scandalized!”
But first, what is herpes?
Herpes is an infection caused by the herpes simplex virus (HSV). It is an extremely common infection, generally mild, but it remains present in the body after the infection. There are mainly two types of HSV: HSV-1, generally associated with oral herpes, and HSV-2, generally associated with genital herpes. However, HSV-1 can also cause genital herpes.
Oral herpes and genital herpes
HSV-1 is mainly transmitted through oral contact and is responsible in particular for the famous “cold sores” or “fever blisters” around the lips. It can however be transmitted to the genital organs during oral sex.
HSV-2 is mainly transmitted during sexual relations and mainly affects the genital or anal region. In both cases, transmission can occur even in the absence of visible lesions, since the virus can be present on skin that appears perfectly normal.
The symptoms, when they appear, can include vesicles, sores or painful ulcerations, sometimes accompanied by itching, burning, fever or swollen lymph nodes. But an important point is that the majority of infected people present no symptoms or do not recognize their symptoms as those of herpes.
Why is herpes not a notifiable disease like syphilis or HIV?
The main reason is that “notifiable disease” (MADO) is a legal and public-health category, and not simply a list of the most serious infections or the most contagious STIs.
The Government of Quebec explains that an infection is listed as a MADO when it notably presents a risk to the population, constitutes a significant threat to public health, requires surveillance or epidemiological investigation, and when the authorities have means of intervention to prevent other cases or control an outbreak.
Why is syphilis notifiable but not herpes?
Syphilis currently appears on the Quebec list of MADOs. When it is diagnosed, the physician must therefore report it to public health and laboratories also have reporting obligations for results meeting the established criteria.
Genital herpes, on the other hand, does not appear on this list. The Government of Quebec does recognize genital herpes as an STI, but it is not among the infections for which individual mandatory reporting is required.
This does not mean at all that herpes is considered “unimportant.” It is rather a difference in the objective of public-health surveillance.
Herpes is extremely widespread, often asymptomatic, remains latent in the body and can be transmitted even in the absence of symptoms. Under these conditions, making every diagnosis of herpes a notifiable case would produce a considerable quantity of individual data, whereas the interest of a public-health intervention comparable to that used for syphilis is much more limited.
Conversely, syphilis can be diagnosed, treated and cured, and its progression can lead to significant complications. Surveillance of new cases therefore makes it possible in particular to follow its progression in the population, identify trends and guide public-health interventions. Quebec moreover specifies that MADO surveillance serves precisely to detect trends and guide prevention and services.
And HIV?
In Quebec, HIV is not reported in the same way as syphilis.
The current list of MADOs indicates that HIV infection is a MADO only when there has been donation or receipt of blood, blood products, organs or tissues. Moreover, Quebec has an epidemiological surveillance system for HIV infection.
Is herpes a lifelong fatality?
Is herpes “for life”?
Yes, in the sense that the virus remains in the body after the infection. It can stay latent in the nerve cells and reactivate occasionally. Some people will have recurrences, while others will never again have apparent symptoms. There is currently no treatment that can definitively eliminate the virus.
But this does not mean that the person will be permanently ill. Antivirals such as acyclovir, famciclovir or valacyclovir can reduce the duration and intensity of outbreaks. Daily treatment can also decrease the frequency of recurrences and, in certain situations, reduce the risk of transmission.
The message therefore contains both accurate elements and misleading statements.
It is accurate that herpes is a persistent infection and that it can be transmitted even when no lesion is visible. It is also perfectly legitimate for a person to want to know a partner’s infectious status before a sexual relation.
On the other hand, presenting herpes as a necessarily serious disease that would automatically prevent any sexual relation, or suggesting that a condom is useless, would be false. The condom reduces the risk of transmission, even if it does not eliminate it completely, since some areas that can transmit the virus are not covered.
And above all, one must distinguish “having herpes” from “constantly having lesions or being ill”: a very large proportion of people carrying HSV present practically no symptoms.
What Canadian criminal law says
This is where things become interesting. The Criminal Code does not contain a specific offence called “non-disclosure of herpes” or “transmission of herpes.” The federal Department of Justice does however specify that the general provisions of the Criminal Code can, in certain circumstances, apply to the non-disclosure of an STI.
The Supreme Court of Canada has established, notably in R. v. Cuerrier (1998) and R. v. Mabior (2012), that a person can incur criminal liability when they conceal an infection and that this concealment vitiates the other person’s consent in a context presenting a sufficiently important risk of serious bodily harm. The criterion was particularly developed in HIV cases.
Canadian criminal law is not limited to HIV. The Department of Justice expressly indicates that the general offences can also apply to other sexually transmitted infections.
Contrary to what the author of this post claims, the fact that genital herpes is not a notifiable disease in Quebec does not mean that an infected person can simply keep their status secret without any consideration for their partner. The Government of Quebec explicitly recommends that people with genital herpes inform their current or future sexual partners.
On the legal level, the situation is however more complex. There is no specific offence in Canada that would automatically oblige every person who has herpes to declare their infection to every partner. The Criminal Code can nevertheless apply to certain situations of non-disclosure of a sexually transmitted infection, when the conditions allowing one to conclude that consent has been vitiated and that there is a sufficiently important risk of bodily harm are met. Prosecutions concerning the non-disclosure and transmission of herpes have moreover already taken place in Canada.
One must therefore avoid confusing three things: a disease that is notifiable to public health, the medical recommendation to inform one’s partners, and the possible existence of criminal liability. These are three different questions.
And elsewhere in the world? A comparison with the United States and Europe
The Quebec situation is moreover not exceptional. In the United States, genital herpes is not considered a nationally notifiable infection. The Centers for Disease Control and Prevention (CDC) specify that syphilis, gonorrhea, chlamydia, chancroid and HIV are reportable in all states, while the obligations concerning other sexually transmitted infections can vary according to the laws of each state or territory.
The CDC moreover explicitly classifies genital herpes among the infections that are not part of the nationally notifiable diseases. In other words, in the United States as in Quebec, the fact that an infection is sexually transmissible does not automatically mean that it must be reported to public-health authorities.
The American logic therefore resembles that of Quebec on this point: herpes is treated mainly through prevention, diagnosis, counselling and reduction of the risk of transmission rather than through a system of mandatory reporting of every case. The CDC recommends in particular that people with genital herpes be informed of the possibility of transmitting the virus in the absence of symptoms and that they inform their current and future sexual partners. The condom can reduce the risk of transmission, without however eliminating it completely.
There is however an important difference with Quebec: the United States does not have a single legal regime applicable to the entire country for the non-disclosure of an STI. The criminal laws concerning the transmission or non-disclosure of infections vary from one state to another and some legislation has historically targeted mainly HIV. One must therefore avoid asserting that a person carrying herpes is automatically subject to the same obligations in all 50 states.
And in Europe?
The comparison with Europe requires even more caution. There is no “European herpes law” that would uniformly impose on all citizens the obligation to declare their infection or to inform their partners. The rules of reporting, notification and legal responsibility fall mainly under national legislations.
At the level of the European Union and the European Economic Area, the European Centre for Disease Prevention and Control (ECDC) does however coordinate significant surveillance of sexually transmitted infections. The infections currently under surveillance at the European level include in particular chlamydia, gonorrhea, syphilis and congenital syphilis, as well as lymphogranuloma venereum. Genital herpes does not appear on this European STI surveillance list.
This distinction is revealing. In Europe, as in Quebec and the United States, public-health authorities do not necessarily seek to record every sexually transmitted infection. They concentrate their surveillance systems on certain infections for which the data make it possible to follow the evolution of the epidemic more effectively, detect important changes in transmission and guide prevention policies.
The difference between herpes and syphilis appears particularly clearly in the European data. In 2024, the countries of the European Union and the European Economic Area reported 45,577 cases of syphilis, and the ECDC observed more than a doubling of the notification rate since 2015. Gonorrhea for its part reached its highest notification level since the beginning of European STI surveillance in 2009.
Herpes is in a very different epidemiological situation. A very large proportion of infected people do not know that they carry the virus and can transmit it without presenting visible lesions. The American CDC also stresses that the majority of HSV-2 infections are not diagnosed and that transmission frequently occurs in the absence of recognized symptoms.
It would therefore be misleading to conclude that the absence of mandatory reporting means that the authorities consider herpes an unimportant infection. It rather means that public-health systems have chosen other means to reduce its transmission.
A fundamental difference between surveillance and personal responsibility
One must above all avoid a confusion that constantly recurs in discussions about STIs: mandatory reporting to public health is not the same thing as the obligation to inform a sexual partner.
A disease may not be notifiable and nevertheless be the subject of very clear recommendations concerning the information of partners.
This is precisely the case of genital herpes in Quebec. The Government of Quebec recommends that people who have it notify their current or future sexual partners and explain to them that transmission remains possible even in the absence of symptoms.
The same principle is found in the American recommendations: the CDC recommends that people who have genital herpes inform their current and future partners before beginning a sexual relation.
In other words, the absence of mandatory reporting does not constitute permission to voluntarily hide one’s infection from a partner. It simply means that the State does not automatically require physicians and laboratories to transmit every individual diagnosis to the public-health authorities.
This distinction is essential. On one side there is epidemiological surveillance, which concerns the health authorities, and on the other side informed consent and responsibility between sexual partners.
A person can therefore perfectly decide that they do not wish to have a sexual relation with a person carrying HSV. That is a personal and legitimate choice. But presenting herpes as an exceptional infection, necessarily disabling or incompatible with a normal sex life does not correspond to current medical data.
Genital herpes is a very widespread chronic infection, often asymptomatic, that can be managed medically and whose risk of transmission can be reduced by several measures: avoiding sexual relations during outbreaks, using a condom or appropriate protection and, in certain situations, resorting to suppressive antiviral treatment. The CDC recognizes in particular that daily valacyclovir can reduce the risk of HSV-2 transmission in certain serodiscordant couples.
The real issue is therefore not whether governments must “denounce” every person who contracts herpes. It is rather to ensure that infected people know their situation when it is diagnosed, understand the mechanisms of transmission and can take responsible decisions with their partners.
And it is precisely for this reason that one must be wary of alarmist posts on social networks: they can start from a perfectly legitimate question — “should my partner tell me?” — and arrive at medical or legal conclusions that are much more categorical than reality.
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