Transmitting the Coronavirus
States generally have two options for prosecuting people who
recklessly or intentionally spread the coronavirus: communicable disease statutes and general criminal laws.
Communicable Disease Statutes
Some states already have
communicable (contagious) disease statutes on the books. A majority of states passed these laws in the early years of the HIV epidemic. Communicable disease laws typically require that defendants:
- have knowledge that they have a disease
- specifically intend (consciously desire) to transmit the disease, and
- engage in conduct that poses a substantial risk of transmission of the disease.
The penalties for violating communicable disease laws vary significantly from state to state. Most states categorize the crime as a
misdemeanor.
Critics of communicable disease laws argue that punishing people who spread the coronavirus might have negative public health impacts. First, booking people with the coronavirus into custody undermines
efforts to stop the spread of the virus in jails and prisons, where physical distancing is impossible. Second, communicable disease laws (like HIV laws) might make people less willing to get tested and disclose their status because they fear criminal prosecution and discrimination.
General Criminal Laws
Law enforcement and prosecutors are also using general state and federal laws to prosecute people who intentionally spread or threaten to spread the coronavirus.
Terrorism and terrorist threats. At the federal level, the Department of Justice (DOJ) formally
announced that the coronavirus appears to meet the statutory definition of a "biological agent," and people who intentionally spread the virus could be prosecuted for terrorism. For example, an infected white supremacist who uses a spray bottle to spread infectious bodily fluids in synagogues can be prosecuted under federal anti-terrorism laws.
State prosecutors have already filed
terrorist threat charges against people who deliberately cough, spit, or touch others while claiming to be infected with the coronavirus. In terrorist threat cases, prosecutors don't have to prove that the defendant actually transmitted the coronavirus to the victim. Prosecutors must only prove that the defendant made a clear, immediate, and unconditional threat to transmit the virus.
Assault and battery. Charges for "coronavirus coughers" might also include
assault and battery. Typically, an assault is an intentional act that causes another person to fear bodily harm. A battery requires that the defendant directly or indirectly touch the victim in an offensive manner.
For example, a person who spits in the face of a police officer while yelling "corona" can be charged with battery on a police officer. Most states classify assaults and batteries as either simple or aggravated, depending on the seriousness of the harm caused by the defendant. Many states punish crimes more severely during declared emergencies.
Child endangerment. Increasingly, prosecutors are throwing the book at people who
violate emergency orders for social distancing. For example, a woman who insists on hosting a birthday party in violation of a stay-at-home order can be charged with violating the executive order and one count of
child endangerment for each child at the party.
