Several U.S. states have laws that criminalize knowingly exposing another to viral hepatitis or other infectious diseases. The definitions of the crimes and severity of penalties vary. Some states specifically target diseases such as HIV and viral hepatitis in the statutes, while others impose penalties for exposing others to any infectious diseases.
While opinions on the validity and utility of such laws varies, a leading concern for patients and those who work in the infectious disease space is how these laws could be used to unduly punish and stigmatize those with these illnesses.
One of the greatest concerns is that the intent to transmit the infection is not a required element of laws in many states. Merely having the illness is enough to subject someone to criminal charges or enhanced penalties if they commit certain crimes. Many of these statutes have nebulous language that leave the door open for inconsistent and prejudicial enforcement.
For example, Ohio law states that it is a crime for a person who knows he or she has HIV, viral hepatitis, or tuberculosis to put another in contact with any bodily substance with the intent to harass, annoy, threaten, or alarm the other person. This crime is punishable as a third-degree felony of 9-36 months in prison. However, someone without knowledge of having an infection who puts another in contact with body substances is only a crime if the perpetrator is confined in a detention center, and even then it is only a fifth-degree felony, punishable with 6-12 months in prison.
Here is the concern. We can likely all agree that spitting, throwing blood, semen, defecating, or urinating on someone is a loathsome offense and constitutes an assault by most legal definitions.
But let’s consider a brief hypothetical:
Two customers, a man and a woman, are on line at a pharmacy counter at a local supermarket. They both collect their respective prescriptions without incident and continue grocery shopping. They meet again in the supermarket produce aisle where they get into a verbal altercation over that last bunch of coveted limited edition cotton candy grapes. Words are exchanged, some close talking and personal space invasion occurs, and in the process of arguing some saliva from the woman lands on the arm of the man. He is not only incensed by being “spit on”, but he remembers that while at the pharmacy counter he overheard her picking up a prescription for a hepatitis C (HCV) medication he’d seen on TV. He calls the police, claiming she assaulted him and exposed him to an infectious disease. When questioned by the cops, the woman does not deny her HCV status. Based on the Ohio law, she ‘put another person in contact’ with her bodily substance. As they were engaged in a hostile dispute, could her intent to ‘annoy, threaten, or alarm’ him be implied?
This scenario may seem extreme to some, but it is to elucidate the potential danger of nebulous laws that can be used to impose harsh penalties on a person merely because of their health status. Should a minor civil dispute become a felony criminal offense just because she has hepatitis C?
The existing stigma associated with diseases such as HIV and HCV are implicitly endorsed by laws such as these, which open the door for citizens and officials to push for strict enforcement of such laws based on subjective interpretations of the laws’ unspecific clauses. Those interpretations will likely be dictated by bias about the diseases that led to the drafting of the laws in the first place.
The National Viral Hepatitis Roundtable and the Center for HIV Law and Policy have issued briefs and reports about controversial state laws that criminalize those with certain health conditions in efforts to raise awareness to this issue and push for changes and repeals of these laws. While it is reasonable to protect the public against those with infectious diseases who may weaponize their condition to intentionally harm others, laws need to be clear in their intent to protect the public welfare, while simultaneously not imparting prejudice and undue punishment on others just because they have an illness.
People with HIV, hepatitis C, or any other infectious disease should not be subjugated by the misperceptions and bias held by those in power in their community. It is important to keep spreading facts, educating the public, and eliminating stigma and prejudice about these illnesses and the people they affect. People are not defined by their health status or any other characteristic. All people are entitled to respect and acceptance despite our many differences and similarities, and the law should never be used to promote prejudice.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.