Criminal Liability of Infection (NCH Essay Entry)

When, if ever, should one be criminally liable for infecting another person with a disease?

Increasingly relevant in today’s society due to the current COVID-19 pandemic, criminalising contagion has been a controversial and topical legal issue for an extended period of time, as is evidenced by the UK 2010 repeal of the HIV criminalisation law. Along with the pandemic, in which Britain has already suffered over 3,000,000 cases, infectious diseases have, in fact, increased exponentially since 1980, with now over 3000 outbreaks of infectious disease globally compared to just over 600 in 1980, perhaps due to our increasingly ‘hands-on’ lifestyles and technological workplaces. This is an issue that potentially impacts upon every citizen in every part of the world, seeing as in society, the chances of contracting a communicable disease from transport, the workplace or simply from friends are significantly higher than fifty years ago. Due to these issues, an important question arises: is one ever criminally liable for the transmission of disease?

In order to break down the liability of a disease carrier for transmitting their illness, one must first consider the carrier’s legal culpability in the matter. Culpability is a major factor in criminal law, as in order to be punished for an act, there must be proof that one is actually to blame, and they had both an ‘actus reus’ (guilty act) and ‘mens rea’ (guilty mind). Therefore, one who is oblivious to the fact that they are spreading disease or cannot understand the transmission of disease, is not at fault as they do not have significant culpability. However, there is a notable difference between this lack of knowledge, and the intentional act of spreading disease in an attempt to harass, threaten or abuse a person, as this is essentially assault, along with the various other consequences that may result from the development of a disease. A recent and topical case of this is on March 22nd 2020 when ticket-collector Belly Mujinga died 14 days after having been intentionally spat on by a person infected with COVID-19, however the offender was never found. This, in principle, would be manslaughter, if able to prove that the death was caused by the spitting incident, however, if not, then the offender would simply be charged with minor battery under Section 47 of Offences against the Person Act 1861.

Although criminal law in the involvement with contagion is often controversial, one of the main purposes of the law is to protect citizens from danger, which essentially disease falls under. The ‘VAR’, or the Voluntary Act Requirement, is essential to establish before legally prosecuting, defined by the certainty that the said criminal act was completed voluntarily, and under the person’s control. The law may not punish for acts which were ultimately not within one’s control. On the other hand, we must consider the claimant’s view, by examining the drastic consequences that may result from certain communicable diseases. A recent example of this is COVID-19, which may involve severe breathing difficulties, diarrhoea and in some cases death in the short term, whereas in the long term, consequences involve memory loss, joint pain, palpitations and depression. Surely, if one is responsible for causing these symptoms in another, this action should be punishable by law?

HIV is often a large focus point on the legal issue of disease transmission, partly due to the 2010 outbreak in which fear of HIV in the population was rife, with approximately 2,700,000 newly infected worldwide, and partly due to the consensual nature of its transmission. Due to its constitution as a sexually transmitted disease, (excluding extenuating circumstances), under the law it can be assumed that both parties enter the knowledge and responsibility to ensure their partner does not have HIV. If you knowingly enter into sexual relations with someone, with the information that you are infected with HIV, one may be guilty of inflicting bodily harm under Section 20 of the Offences against the Person Act 1861. There are additional controversies in criminalising the infection of sexually-transmitted diseases, which may result in drastic consequences in controlling them, since many may be reluctant to be tested if they can be prosecuted for knowingly transmitting the illness; further, these laws may exacerbate existing stigmatisation of HIV and those infected.

Under legal terms, the criminalisation of transmitting diseases may fall under the law of negligence, in which an unintended accident (inadvertently infecting another) may result in serious injury or financial loss (in this case the consequences of the illness, perhaps even death). However, in order to define a crime like this, it must adhere to three qualities: the defendant must owe the claimant a ‘duty of care’, prove that the defendant did not provide care to the standard of which another may, and prove that the consequences were caused by the defendant’s own actions. In breaking this down, a ‘duty of care’ is usually referred to as a relationship in which one is morally responsible for the other, for example an employer-employee relationship; on the contrary, in this case you may refer to the ‘duty of care’ as an ‘obligation to avoid careless harm’ to another, or not exercising a sufficient degree of care. Under legislation, this transmission of disease falls under Section 4 of the Law Reform (Contributory Negligence) Act 1945, in which ‘damage’ is defined by ‘loss of life or personal injury’ (applicable for disease), by which the defendant is at ‘fault’, defined by ‘negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort’. In simple words, the defendant was responsible for the claimant’s injuries, or in this case pain due to carelessness.

Although the legal route of negligence appears relatively simple, from the last condition upon which someone can claim that another is criminally negligent may arise some logistical issues: proof. The ‘burden of proof’ is a legal duty of the prosecution to prove that the defendant is guilty ‘beyond reasonable doubt’ and that they were indisputably the causation of the death, or pain of the plaintiff. The defence would state that arguably, the claimant could have contracted their disease from anywhere, or anyone, and in order to establish a personal injury liability, one would have to prove that the defendant passed the infection, a virtually impossible task due to the prevalence of disease today. Moreover, proof of a ‘mens rea’ would be increasingly more difficult to demonstrate, due to the extremely fine line between accidental transmission and malicious intent to transmit, potentially disguised as inadvertent spreading.

This legal issue is highly dependent on the type of disease, for even common colds classify as a communicable disease, however due to the casual, and relatively harmless nature of them, morally one should not be punished for infecting another. It is inevitable that in life one will contract and pass on various bacterial and viral diseases, and in fact often these are (in the long term) beneficial to the immune system. However, concerning more serious diseases, such as Ebola, SARS or COVID-19 that come with more consequences and implications, the risk is increasingly higher and therefore appropriate litigation should be considered. With this, comes the fine line between the severity of symptoms which will define the disease as serious enough to be considered as illegal to transmit.

In conclusion I believe that unless clear intent of abuse or harassment is evident, one should not get punished for the transmission of an infectious disease, as this is highly unjust and in many cases, the defendant would not have the ‘mens rea’ necessary to prove this. Criminal law may be viewed as an appropriate method of controlling the spread of disease, as in the words of John Stuart Mill ‘[t]he only purpose for which power can be rightfully exercised over any member of a civilised community against his will is to prevent harm to others’, however incarcerating one who is unaware of their illness, or the transmission of said illness, seems a rather draconian punishment. In my opinion, the huge potential miscarriages of justice towards those who are oblivious to their disease would be too great to risk criminalising all contagion, along with the fact that there is too much of a ‘grey area’ surrounding the intent, type and consequences of various diseases.

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