COVID-19 Symposium: The Use of Criminal Sanctions in COVID-19 Responses – Exposure and Transmission, Part I

[Nina Sun is the Deputy Director and Global Health and Human Rights & Assistant Clinical Professor at the Dornsife School of Public Health, Drexel University  and Livio Zilli is a Senior Legal Adviser & UN Representative at the International Commission of Jurists.]

This piece is split into two parts – the first focuses on criminalization of COVID-19 exposure and transmission, and the second on criminal sanctions for the enforcement of public health measures.

On 11 March, the World Health Organization (WHO) officially recognized COVID-19 as a pandemic. COVID-19 is a serious, highly contagious respiratory illness, with symptoms that range in severity. Most people will have mild symptoms, and some, none at all, while others may experience severe respiratory distress, which can result in death.

COVID-19 is an unprecedented public health emergency – both in the rapid spread of the disease and because of the sweeping nature of some the measures States have taken in their responses to it. In the urgency of responding to this crisis, however, governments must not forget their human rights obligations. The Siracusa Principles – which reflect obligations codified in numerous international human rights instruments and customary international law – acknowledge that certain human rights may be restricted in a public health emergency. Under international law, however, limits on human rights may only be justified when they fulfill specific criteria: they must be prescribed by law; pursue a legitimate aim; be strictly necessary; proportionate; be rationally connected to the pursued aim, including by being based on scientifically sound evidence; be of limited duration; and subject to review.

In light of those criteria, this post focuses on States’ use of criminal law in their responses to COVID-19. While it is important that States recognize that the new coronavirus is a serious public health emergency, COVID-19-related criminalization is an alarming trend. We question, in particular, the advisability and effectiveness of current criminal law responses in terms of public health, based on past experience, and seriously doubt their consistency with human rights law and standards. Though States may be using criminal law with the broad aim of reducing transmission of COVID-19, for present purposes, we analyze two distinct ways in which States are resorting to these measures: criminalization of COVID-19 exposure and transmission (part 1), and enforcement of public health measures through criminal sanctions (part 2).

Overview of COVID-19-related Criminalization for Exposure and Transmission

Since the emergence of the new coronavirus, some States have resorted to criminal law with the stated aim of sanctioning COVID-19 exposure and transmission. They have done so in at least two ways: through COVID-19 specific offences and general criminal provisions.   

COVID-19 Specific Provisions

Some States have enacted specific offences for COVID-19 exposure and transmission. In January, after the outbreak of COVID-19 in China’s Hubei province, authorities announced that people with confirmed COVID-19 infections could face criminal proceedings if they spat in public, thereby ‘intentionally spreading’ the virus. People who are suspected of having COVID-19 or people who have tested positive for COVID-19 but refuse to be quarantined might also face criminal sanctions. In March, as part of South Africa’s response to COVID-19, the country enacted regulations under the Disaster Management Act to explicitly criminalize COVID-19 exposure. The Regulations proclaim that ‘any person who intentionally exposes another person to COVID-19 may be prosecuted for an offence, including assault, attempted murder or murder’. Pursuant to those regulations, a man was reportedly arrested for ‘attempted murder’ when he went to work, despite testing positive for COVID-19.

Applicable General Criminal Provisions

States are also applying other criminal provisions to COVID-19 exposure and transmission. In France, there have been reports of individuals who had repeatedly violated quarantine rules being charged with ‘endangering the lives of others’. This offence is punishable by a fine of 15,000 Euros or up to a year’s imprisonment. In the US, the Department of Justice announced that ‘purposeful exposure and infection’ with COVID-19 or threats of such actions could be charged under federal terrorism laws. In pursuit of this approach in the state of New Jersey, the state’s attorney general charged a man with making a ‘terroristic threat’ by allegedly coughing at a woman and telling her that he had COVID-19. If convicted, the man faces three to five years’ imprisonment and a fine of US $ 15,000.

Analysis

Criminalization of exposure and transmission of infectious diseases raises concern under criminal and human rights law. It is generally neither effective nor necessary to advance public health goals. When considering such criminalization in the context of COVID-19, States should learn lessons from another epidemic: HIV and AIDS. Since the beginning of the HIV epidemic, States have enacted laws that criminalize HIV non-disclosure, exposure and transmission. Over the years, however, these laws have been found to violate human rights and public health standards and may be inconsistent with principles of substantive criminal law. Rather than being based on scientific and medical evidence, criminalization of HIV non-disclosure, exposure and transmission was driven by fears and prejudices about the disease. Such criminalization increases HIV-related stigma and is not informed by the latest scientific and medical evidence and undermines public health outcomes. For instance, research shows that criminal sanctions, and attendant HIV-related stigma and discrimination, disincentivize HIV testing.

The current resort to criminal laws, purportedly to sanction COVID-19 exposure and transmission, eerily echoes back to those concerns. The use of criminal law is likely to contribute to fear of COVID-19, increasing stigma for people with COVID-19 or those who may have symptoms associated with the illness. Upon conviction, the potential penalties associated with those offences also appear to be disproportionately harsh in light of the WHO’s advice that the vast majority of people (over 80%) will recover without any treatment. There are also concerns about the discriminatory application of COVID-19 exposure and transmission offences. For instance, COVID-19-related discrimination has already occurred, as seen through the rise in coronavirus-related attacks against Asians. Like HIV-related criminalization, it is also foreseeable that these offences may be disproportionately enforced against marginalized individuals, such as people who live in informal settlements or those who are affected by homelessness.

Current gaps in knowledge and science about COVID-19 mean that prosecuting people for COVID-19 exposure and transmission would be fraught with difficulties. First, proving ‘culpability’ would appear to be extremely hard. Moreover, the criminalized ‘act’ for COVID-19 exposure or transmission may be too vague and overbroad to comply with foundational principles of criminal law. Questions abound around COVID-19 transmission, including the possibility and rate of asymptomatic transmission (i.e., transmission of the virus by people who have the illness, but no symptoms). Even with more data becoming available, given that the new coronavirus is highly contagious, and that there is community spread in many places, it will be difficult, if not impossible, to prove that one person definitively acquired the virus from another identified individual.

Critically, criminalization of COVID-19 exposure and transmission undermines public health outcomes. Criminal sanctions for people with COVID-19, as well as increased stigma as a result of criminalization, may deter people from seeking testing and other health services. COVID-19-related criminalization also greatly increases the harm to individuals via detention and/or incarceration. Individuals in closed settings are at higher-risk of acquiring COVID-19 because of the inability to practise social distancing measures and limited access to medical goods and services. In fact, some States have released people in closed settings, including prisoners. Others have delayed criminal and other trials, recognizing that courts, like other public spaces, may contribute to COVID-19 transmissions. Criminalization of exposure and transmission thus weakens public health responses to COVID-19.

In conclusion, given considerations around human rights, substantive criminal law and public health, countries should refrain from criminalizing COVID-19 exposure and transmission.