Can we criminalize the careless?

By: Dave Aronberg, State Attorney, Palm Beach County, Florida

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Dr. Dave Campbell, Chief Medical Correspondent, Morning Joe / MSNBC

Six days after taking a coronavirus test, Senator Rand Paul continued to work at the U.S. Capitol and attended a luncheon with his fellow GOP Senators.  A physician himself, Senator Paul made the decision to continue working and exercising in the Senate gym after showing no symptoms of the illness.  The revelation of his positive test shocked Sen. Paul’s colleagues and prompted rare public rebukes for his conduct from both sides of the aisle.

Palm Beach County residents expressed similar outrage when a retired New York physician awaiting his own test results boarded a JetBlue flight to Palm Beach International Airport.  While on board, the passenger received a text message from his doctor alerting him that he had coronavirus.  The individual notified the flight crew upon landing and agreed to self-quarantine.  ­In response, JetBlue banned him for life for boarding the flight without disclosing to the airline that he was awaiting coronavirus test results.  But this wasn’t enough of a sanction for many local residents, including the other passengers on the flight, who wanted to know if the irresponsible individual could be charged criminally.

During this stressful period, people are understandably concerned about the carelessness of others who ignore the need for social distancing and self-quarantines.  In cases of negligence and intentional misconduct, how can law enforcement and prosecutors hold those accountable who put others at risk of contracting COVID-19?

Many people asked a similar question during the early years of the HIV epidemic.  In response, at least 33 states passed laws to criminalize HIV transmission, including Florida, which makes it a third-degree felony (punishable by up to 5 years in prison) for individuals with HIV to knowingly withhold the information from a sexual partner.  Such laws are now being re-evaluated throughout the country in light of breakthrough treatments for HIV and greater awareness that these laws can increase HIV-related stigma, which can discourage testing and legitimize discrimination.   

Although mandatory notification laws for HIV are commonplace in the U.S., our state and federal statutes relating to the transmission of COVID-19 or other disease epidemics are largely silent. 

An exception is Ohio, where it is a second degree misdemeanor for someone who believes he has a “dangerous, contagious disease” to “knowingly fail to take reasonable measures to prevent exposing himself to other persons.”

In the rest of the country, the closest tool in a prosecutor’s arsenal to criminalize the spread of coronavirus is the charge of “culpable negligence,” which assigns criminal liability for gross acts of negligence that expose others to harm.  This law, however, is an imperfect fit for a new pandemic like coronavirus, as courts usually demand that prosecutors show that someone’s negligence would likely have caused harm to others.  At this stage, there are a lot of unknowns about COVID-19, including the chances of spread and mortality rate.  If someone is charged under culpable negligence for spreading the coronavirus, prosecutors and defense lawyers would need medical experts to testify on the likelihood of contracting the disease from the infected individual in such locations as an airplane, inside a gym or at a caucus luncheon.  Prosecutors would also need to show that the defendant knew or should have known that he had the infectious disease when he acted so recklessly, but this is made more difficult in the absence of widespread COVID-19 testing.

It is much easier for prosecutors to charge someone with violating a quarantine order, which is also a misdemeanor and more cut and dry – either the defendant was in his quarantine location or he was not –  than dissecting an infected individual’s decision making to show culpable negligence.  It’s also easier to prosecute those who intentionally try to spread the disease, such as the uncooperative domestic battery suspect in the Orlando area who shouted “I have the coronavirus” and coughed large amounts of saliva directly onto a paramedic’s face.  That individual is now facing felony charges of battery on a paramedic. 

At the federal level, the Department of Justice recently notified its prosecutors that the coronavirus meets the statutory definition of a biological agent, which means that anyone threatening or attempting to spread the disease can be charged with terrorism crimes.  This comes after the FBI issued an alert that infected white supremacists may attempt to use spray bottles to spread their bodily fluids to cops and Jews. 

We are living in unchartered territory, as the COVID-19 pandemic snuck up on many of us.  Legislators around the country should review and modernize our criminal laws to reflect the realities of today.  But in so doing, we must learn from our experience with the criminalization of HIV transmission and ensure that any new law does not have the unintended consequence of making us less safe.  The harm of adding to a Scarlet Letter C stigma that would deter people from getting tested for coronavirus needs to be balanced against the understandable desire to hold reckless individuals accountable.  As representatives of the people who write the laws, it will be up to legislators to make these difficult choices.  Until then, prosecutors will continue to apply existing laws to new and evolving circumstances. 

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