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Excerpted From: Naomi Seiler, Anya Vanecek, Claire Heyison and Katherine Horton, The Risks of Criminalizing Covid-19 Exposure: Lessons from Hiv, 24 Human Rights Brief 5 (Summer, 2020) (56 Footnotes) (Full Document)
On March 24, 2020, U.S. Deputy Attorney General Jeffrey Rosen released a memo on U.S. Department of Justice enforcement actions related to COVID-19. Among other "reprehensible" COVID-19 related behavior such as fraud, he noted that the "purposeful exposure and infection of others with COVID-19" could "potentially implicate the Nation's terrorism-related statutes." Meanwhile, prosecutors have already brought multiple state criminal cases against individuals acting or threatening to intentionally infect others with COVID-19, and legislators in at least one state have introduced a COVID-19-specific "terrorist threat" bill.
Criminalizing COVID-19 exposure may seem reasonable in cases when a person appears to have deliberately tried or threatened to infect others. However, using the criminal law as a tool to address COVID-19 more broadly warrants concern.
We argue in this Article, drawing on lessons from HIV criminalization in the United States, that a response that too broadly criminalizes COVID-19 would likely impose inequitable infringements of individual rights, particularly among those most socially and economically vulnerable. As the UN program on AIDS stated in a recent analysis of COVID-19 and human rights, "the overuse of criminal law can often have significant negative outcomes both for the individual and for the response as a whole and often fails to recognize the reality of people's lives." In the United States, the reality of people's lives includes vast disparities in healthcare, employment, and the criminal justice system that would render COVID-19 criminalization a highly problematic approach.
We begin with detailed background on the development and application of HIV-specific criminal laws in the United States, along with prosecutions under general criminal statutes. We then lay out a range of considerations for policymakers, prosecutors, and others, starting with the most important: COVID-19 criminalization risks overlaying the major racial disparities in COVID-19 outcomes with the already deeply inequitable application of criminal law. Additional considerations include overbroad prosecutions for "knowing" exposure rather than intent to transmit; inequities in the availability of potential affirmative defenses; the potential impact of criminalization on COVID-19 testing rates; the creation of stigma that could hinder public health efforts to contain the spread of COVID-19; and the existing evidence of disparate enforcement of social distancing requirements. We close with a reminder that any individual decision made by a person with COVID-19 should not be considered in isolation from the structural and social factors influencing that person's health and personal choices.
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Applying potential criminal liability for COVID-19 runs into the same problem as the criminal law often does more broadly: it seeks to assign culpability to an individual with little or no regard to the structural context of that person's decisions. Like HIV, the nature of COVID-19 infections and the decisions people face during this pandemic are influenced by a confluence of community, public health, and national factors.
The COVID-19 epidemic in the United States, to date, is characterized by massive failures of federal leadership and planning, shortages of medical equipment and gear, an inconsistent patchwork of state and city approaches, and the politicization of basic public health advice and precautions. These factors overlap with persistent racial and ethnic disparities in underlying risk factors for severe COVID-19 illness, access to healthcare, and people's economic ability to stay at home. Meanwhile, politicians and business owners are making decisions daily--from requiring or disparaging mask use, continuing or ending unemployment assistance, reopening or not in the face of new spikes in infection--that influence community risk and the economic choices far beyond any one person's decisions. Given this context, in most cases the value of punishing individuals for COVID-19 exposure does not justify the multiple inequities and infringements that criminalization would impose on individuals and communities.
Naomi Seiler is an Associate Professor in the Department of Health Policy and Management at George Washington University..
Anya Vanecek is a Senior Research Associate in the Department of Health Policy and Management at George Washington University.
Claire Heyison is a Senior Research Associate in the Department of Health Policy and Management at George Washington University.
Katie Horton is a Research Professor in the Department of Health Policy and Management.
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