When, if ever, should one be criminally liable for the passing of disease? (NCH Essay Finalist)

Criminal liability[1], by definition, is the responsibility for any illegal behaviour that causes harm or damage to someone or something. With this in mind, infecting another person with (serious) disease should call for criminal liability as the main goal of any law is to establish standards that do not fall short of the protection of society. This can be done by holding the offender legally responsible for the harm they have caused having taken into account intention, recklessness, and relation to current issues.

If one should ever be criminally responsible for passing on disease then it should be done when there is proof of mens rea (the intention to transmit the disease and cause harm) and acteus reus (the physical passing on). Although, it should be noted that this point of view is in accordance to more deleterious diseases such as HIV, tuberculosis etc as opposed to minor diseases like the flu as the latter has less detrimental effects in comparison to the former and that is the main concern here. Let us take the example of sexually transmitted diseases, specifically human immunodeficiency virus (HIV), if it has been proven that X had specific motive to infect Y with this harmful disease then it is clear their intention was to cause harm as it is the only consequence of their action, they pass on HIV and the victim inevitably suffers from its effects. This is also not taking into account the vital legalities of consent that has not been given in this scenario- the spreading alone is punishable. When determining liability, intent is pivotal as it differentiates those who mean to cause harm to others from those who do not and the difference in people and the actions we take against them, is how we keep our society safe. The importance of this argument is echoed by the HIV criminalisation in California, particularly the California Health and Safety Code 120291 whereby if the HIV-positive person does not disclose their status and has specific intent to transmit the disease to their sex partner, they are punishable by imprisonment in state prison for three, five, or eight years[2]. Laws such as these are crucial in the protection and safety of society and therefore perpetrators with the intention of taking this right to safety away, must be held liable.

However, it is arguable that without rightful intention to cause harm, there is no responsibility to uphold. This idea is rooted in the grounds that it is unjust to hold people accountable for something they had no knowledge of, if even if it is regarding themselves. It seems reasonable to think that it’s unfair for person X to be lawfully penalised for passing on HIV to person Y if they did not know they carried the disease themselves. Yes, its is a given that they should have been more cautious with their sexual health but this should not be taken the extreme of lawful conviction as neither parties had an awareness of the disease person X carried otherwise that would be an injustice in itself. Moreover, during transmission person X had no intention of causing harm to person Y and that is what should take importance above all else. In Sweet v Parsley, it was ruled by the House of Lords that the defendant should be found not guilty on the grounds that knowledge of the use of the premises was essential to the offence. Since she had no such knowledge, she did not commit the offence[3]. This ruling is in junction with the idea that the fundamental part of a possible conviction is that there is clear knowledge and mens rea which person X did not have therefore they should not be subject to criminal liability. But even so, it does not make them entirely innocent as it has been neglected to realise that they are at fault one way or an other. It is their lack of caution that is consequential here. Regardless if they intended to or not they still caused another persons physical suffering, with their recklessness playing a large role. If they had not been so negligent and care-free, it could have been possible to avoid causing harm to person Y in the first place and so by holding the neglectful party responsible, not just for sexual disease, but for all serious communicable diseases, it acts as a deterrent for those also behaving recklessly with diseases of their own. This in turn would create a safer, less anxious society.

Returning to the crucial point of mens rea, it is up for discussion whether transferring disease is a strict liability crime (crimes which require no proof of mens rea in relation to one or more aspects of the actus reus[4]). The conclusions of Gammon (Hong Kong) v Attorney-General of Hong has played a vital role in determining whether an offence is one of strict liability and the presumption that mens rea is required. It is stated that this presumption may be rebutted where the crime is one of social concern[5] and the case of person X passing any disease to person W, Y, Z etc is most definitely of social concern as it undermines the safety of society. Therefore it is rational to think of cases such as these as those of strict liability crimes and thus mens rea should not take relevance in deciding whether person X is liable. The conclusion of Alphacell Ltd v Woodward has been influential in the manifestation of this idea. Lord Salmon’s comment that ‘riparian factory owners should not only to take reasonable steps to prevent pollution but to do everything possible to ensure that they do not cause it’[6], is a valuable proposition in the instance of disease transmission. It should be that those who test positive for any kind of harmful disease, must take every reasonable measure to prevent its spread and to protect others from themselves and if they do not take these essential steps, they must be held accountable for their behaviour.

This is highly relevant in relation to current affairs. There has been many legal implications of the COVID-19 crisis, more specifically the establishment of the new legislations surrounding covid safety such as the recent law to wear face coverings in most indoor settings[7]. Disobeying these new laws put in place is indefinitely a matter of social concern consequently making it a strict liability crime. In this ongoing pandemic it is vital for every single UK citizen to follow the coronavirus legislations in order to control and prevent the spread of disease, thus to reinforce its gravity, it is most certainly appropriate for those self-servingly breaking these laws to be held criminally liable and subject to legal action as not only are they putting those who are more vulnerable at risk but it also raises the issue that we will never never recover from this calamity if we do not have the compliance of all. However, the current method of police action against those who break the rules[8] need to be reviewed, the threat of breaking up illegal gatherings and issuing small fixed penalty notices does not seem to be enough of a dissuasion. Although It is understandable that there is not much that can be done in response to those who choose not to abide by these laws, measures such as increasing the initial fine from £200[9] to, for example, £600 is a sufficient start to improving such deterrents.

Ultimately, it ought to be that, one should be criminally liable for infecting another person with serious disease as when they cause harm to others by doing so, they simultaneously transgress the basic fundamentals of law and society- the protection and safety of others. Aside from the establishment that this is indeed a crime of strict liability and therefore mens rea has no significance, you can also successfully come to this conclusion when considering the principles of intention, and the lack there of, with the verdict being that: it does not matter. The motive does not matter. This is because the after-effects will be the same whether or not there was motive to do so and as a result it simply should not be taken not account. Responsibility does not lie in the mens rea. It lies in the outcome of reckless actions and we must act accordingly in response. Transmission of disease should not go unpunished.

[1] https://dictionary.cambridge.org/dictionary/english/criminal-liability [2] https://williamsinstitute.law.ucla.edu/wp-content/uploads/HIV-Criminalization-Transmission-Dec-2016.pdf [3] https://www.tau.ac.il/~tsirel/dump/Static/knowino.org/wiki/Sweet_v_Parsley.html [4] https://www.e-lawresources.co.uk/Strict-liability.php#google_vignette [5] https://www.e-lawresources.co.uk/Gammon--Hong-Kong--v-Attorney-General-of-Hong.php [6] http://www.e-lawresources.co.uk/cases/Alphacell-Ltd-v-Woodward.php [7] https://www.gov.uk/guidance/national-lockdown-stay-at-home#if-you-break-the-rules [8] https://www.gov.uk/guidance/national-lockdown-stay-at-home#if-you-break-the-rules [9] https://www.gov.uk/guidance/national-lockdown-stay-at-home#if-you-break-the-rules