Coronavirus (COVID-19) has become an unprecedented public health emergency—both in its rapid spread and the sweeping nature of some of the measures the federal and state governments have taken in response to it. The Department of Justice declared that federal anti-terrorism laws (which have a penalty of more than 10 years imprisonment and a fine) can be used to prosecute anyone who threatens or attempts to spread the coronavirus. And in Pennsylvania, a woman who is not believed to have the coronavirus faces charges for allegedly purposefully coughing on exposed produce, bread, and meat at a grocery store. Such efforts may satisfy the public’s desire for retribution but are counterproductive to positive public health outcomes. As a Black queer man living with HIV in the Deep South and someone who follows the policing of HIV criminalization laws, I can tell you: Criminalizing coronavirus transmission will not end this pandemic.
I want to be clear that we should be adhering to recommendations from both the Centers for Disease Control and Prevention and the World Health Organization. But I also cannot help being critical of approaches like criminalization that provide no evidence of effectiveness in combating communicable diseases. I live in a country and state with laws that consider me a public safety issue even though I know that people like myself living with HIV are not the problem. And as more people are diagnosed with coronavirus, they will not be the problem either. I also understand that coronavirus and HIV are very different from a science standpoint, but there are some valuable lessons from the widespread efforts to criminalize the transmission of HIV that support why criminalization will do nothing to flatten the curve.
Since the beginning of the HIV epidemic, states have enacted laws that criminalize HIV non-disclosure, exposure, and transmission. According to The Center for HIV Law & Policy, 34 states currently have HIV-specific criminal laws and/or sentence enhancements for persons living with HIV who have allegedly exposed others to HIV. Importantly, the criminal laws are frequently applied to people living with HIV even when no actual transmission of HIV occurred. Rather than being based on scientific and medical evidence, criminalization of HIV was (and still is, in many states) driven by fears and prejudices about the disease. The criminalization of HIV transmission has negative public health impacts—and the same will probably hold true for efforts to criminalize coronavirus transmission, for the following reasons:
- 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.
- 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 to nonexistent. 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.
- There is no evidence supporting the claim that criminalizing sexual conduct when someone is HIV positive actually deters people living with HIV from engaging in sexual conduct. That is, these criminal laws do not appear to deter HIV-positive individuals from having sex. The same is likely to hold true for efforts to criminalize COVID. Criminalizing certain behavior related to unsafely exposing others to COVID may have marginal influence on individual behavior, even if the behavior does pose a risk of transmission.
- As with many criminal laws, people already at the margins of society are subjected to over-policing; this includes people of color and LGBTQ+ people of color. There is no reason to believe that the 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 the most vulnerable to charges of criminal transmission.
An effective response to COVID-19 must ensure that people who are the most marginalized are able to access the means to practice public health protocols. This means ensuring that people have a home to “stay home” in, and that information, education, and support are accessible and help make physical distancing possible.
The criminalization of coronavirus exposure and transmission undermines any positive public health outcomes. It is alarming to think that I live in a country where individuals can so easily be characterized as terrorists just because of what is happening in their bodies. As a Black queer man living with HIV, I am all too familiar with the unfair “safety risk” label (and weight of responsibility) I have to carry with me for the rest of my life. But I know that people like myself with HIV are not terrorists just because we are living with a virus—and neither are those living with coronavirus. From my lived experience as a Black queer man living with HIV, I have seen what the criminalization of individuals living with a disease can do: increase stigma and create a barrier for individuals seeking testing and treatment. We do not need more criminalization of COVID-19 (and HIV), we need for all Americans—in particular, those most marginalized by the COVID-19 crisis—to have more access to education, testing, treatment, and support. Criminalizing will not end the transmission of the coronavirus, but will increase its spread. We can’t criminalize our way out of this pandemic.