Could prosecuting STI transmission increase infections?

In my ECONS102 class this week, we covered unintended consequences - where an incentive is created that works against what was originally intended. One of my favourite examples is the familiar (but possibly apocryphal) story about cobras in Delhi, as I noted in this 2015 post:

The government was concerned about the number of snakes running wild (er... slithering wild) in the streets of Delhi. So, they struck on a plan to rid the city of snakes. By paying a bounty for every cobra killed, the ordinary people would kill the cobras and the rampant snakes would be less of a problem. And so it proved. Except, some enterprising locals realised that it was pretty dangerous to catch and kill wild cobras, and a lot safer and more profitable to simply breed their own cobras and kill their more docile ones to claim the bounty. Naturally, the government eventually became aware of this practice, and stopped paying the bounty. The local cobra breeders, now without a reason to keep their cobras, released them. Which made the problem of wild cobras even worse.

Just because the consequences of a policy are unintended, that doesn't necessarily mean that they are unforeseen. Sometimes, we can anticipate what will go wrong with a particular policy. And it's not just policies that can go wrong. Any change in costs or benefits that alters people’s incentives can produce unintended consequences. As an example, consider this recent article in The Conversation by Bridget Haire and David Carter (both University of New South Wales):

In an Australian first, a Canberra man has been convicted for giving genital herpes to a sexual partner...

This recent case represents a significant expansion of criminal law into sexual health. It sets an unhelpful legal precedent, and undermines successful public health messages.

Decades of research have concluded that prosecuting disease transmission doesn’t reduce infection and may make things worse...

But criminalising transmission can create perverse incentives not to seek medical care and treatment. If a person genuinely doesn’t know their status, it can be more difficult to prove “reckless” transmission.

The intuitive case for punishment is especially strong in this case: the man knew his status, denied having an STI when directly asked, and repeatedly had unprotected sex with his partner. However, the punishment itself will change incentives for other people.

Ideally, we want people to know their STI status. For curable STIs, diagnosis enables treatment. For example, for infections such as herpes, it allows people to use medication and other precautions that reduce the risk of further transmission.

At one level, it makes sense to punish people who knowingly infect others with an STI. That creates a strong disincentive to transmit STIs to other people. However, criminalising STI transmission also reduces the incentive to get tested, because a person not knowing that they are infected might be able to use their lack of knowledge of their infection status as a defence in a criminal case. So, we might expect that fewer people would get tested for STIs. So, on the one hand there are disincentives to transmit STIs, but on the other hand there are disincentives to find out whether you are infected with an STI, which leads to move STI transmission. If the latter effect is larger, then overall there could be higher prevalence of STIs and greater incidence of new infections.

And so, rather than reducing STI infections, criminalising those who transmit STIs may have the unintended consequence of increasing STI infections overall.