Public health emergencies, particularly those involving contagions, evoke a host of knee-jerk responses based on misconceptions. Fear and anxiety are understandable. The antidote is education and communication regarding how a virus spreads, how it doesn’t, and what can be done to prevent transmission and treat affliction. Unfortunately, as evidenced by President Donald Trump’s shameful and racist attempt to label the coronavirus “Chinese,” too often there is also a desire to blame. That impulse has resulted in attempts to criminalize the transmission of the coronavirus that causes COVID-19.
For example, the Department of Justice has declared that federal anti-terrorism laws can be used to prosecute anyone who threatens or attempts to spread the coronavirus. Similarly, New Jersey criminal laws have been used to charge a man who allegedly threatened and then coughed on a grocery store clerk after declaring that he had the coronavirus. In Pennsylvania, a woman who is not believed to have the coronavirus is nevertheless facing charges for allegedly purposefully coughing on exposed produce, bread, and meat at a grocery store. Such efforts to criminalize contagion may satisfy the public’s desire for retribution—but from a public health standpoint, they are counterproductive. They may hasten, rather than halt, the spread of a disease.
Widespread efforts to criminalize the spread of HIV demonstrate why criminalization backfires. The use of criminal laws to police and punish those who have engaged in activities that might have exposed others to a risk (sometimes negligible) of HIV transmission persists in the United States. According to the Center for HIV Law and Policy, about half of the states have HIV-specific criminal statutes. These statutes vary greatly, but many of them criminalize engaging in sexual conduct with another person without disclosing that one has HIV. And some criminalize sexual activity—such as oral sex—that poses low to no risk of HIV transmission.
States have also relied on broader criminal prohibitions, like attempted homicide or assault laws, to prosecute people who have allegedly exposed others to HIV. Importantly, the criminal law is frequently applied to HIV-positive people who engage in sexual conduct even when no actual transmission of HIV occurs.
Whether pursued under general criminal law or HIV-specific statutes, the criminalization of HIV transmission has negative public health impacts—and the same will probably hold true for efforts to criminalize coronavirus transmission. First, criminalization discourages people from getting tested. Most criminal laws have some form of knowledge requirement. If a person does not know they are HIV- or COVID-19-positive, they may not be successfully prosecuted for potential transmission. This disincentivizes testing because if you do not know your status, you are less likely to be prosecuted for knowing transmission. (Of course, tests for COVID are currently in short supply.)
Second, the criminal laws may be used to prosecute people who are engaged in activities that pose a low risk of transmission. For example, if a person with HIV uses a condom or has an undetectable viral load, then the risk of transmission via sexual intercourse is very small (a concept known as U = U, or undetectable = untransmittable). And HIV criminal laws often fail to consider that, today, through the use of preexposure prophylaxis, or PrEP, all parties to a consensual sexual encounter can protect themselves from HIV transmission. Similarly, prosecuting someone for coughing or failing to physically distance themselves—even when they do not have the coronavirus—perpetuates misinformation regarding how the virus is transmitted and adds to societal paranoia rather than societal preparation. (Though, to be clear, everyone should, to the extent possible, physically distance to protect themselves and because they may have the virus and not know it.)
Third, there is scant evidence that criminalizing sexual conduct when someone is HIV-positive actually deters people living with HIV from engaging in sexual conduct in the first instance. That is, these criminal laws do not appear to deter HIV-positive individuals from having sex. As explained by the 2015 updated National HIV/AIDS Strategy, “HIV-specific [criminal] laws do not influence the behavior of people living with HIV in those states where these laws exist.” The same is likely to hold true for efforts to criminalize COVID. Criminalizing certain behavior related to unsafely exposing others to COVID (such as failing to physically distance when you have COVID) may have marginal influence on individual behavior, even if the behavior does pose a risk of transmission. Instead, the more effective method of changing the public’s behavior is to educate people on how to protect themselves and others, which can also help build trust between the government and society.
Moreover, efforts to criminalize the coronavirus will undermine efforts to protect incarcerated populations from exposure and outbreaks by potentially sending people living with the coronavirus into jails and prisons, where physical distancing is impossible.
Finally, as with many criminal laws, HIV criminal laws disproportionately affect people already at the margins of society and subject to overpolicing, including sex workers and people of color. There is no reason to believe that criminalization of COVID-19 won’t have the same effects. Disadvantaged communities lack ready access to health care and may have jobs or living quarters that limit their ability to self-isolate or quarantine. They will bear the brunt of the coronavirus pandemic in the first instance and will then be most vulnerable to charges of criminal transmission.
For these reasons, the National HIV/AIDS Strategy first released by the Obama administration in 2010 and updated in 2015 called for states to reexamine the use of criminal law to police potential transmission of HIV. The report noted that the continued “existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.” Why? Such laws make people less willing to disclose their status because they feel at greater risk of discrimination.
Consistent with the National HIV/AIDS Strategy, a variety of jurisdictions have begun to roll back their efforts to criminalize the transmission of HIV. As we begin to mitigate the harms caused by the coronavirus, we should bear the lessons of the (ongoing) HIV epidemic in mind and not rush to criminalize—and thereby stigmatize—the disease, pushing it further into the shadows where it can spread more efficiently.
This article’s analysis of HIV criminal laws draws from my forthcoming chapter, “HIV Law and Policy in the United States: A Tipping Point,” in the Oxford Encyclopedia of LGBT Politics and Policy.