Updated: March 29, 2023
At the beginning of the pandemic, the government took numerous steps to contain and stop the spread of COVID, including enforcing stay-at-home orders, mask requirements, and criminal transmission laws. Now that COVID has become part of our everyday lives and public health emergencies have mostly ended, does the threat of criminal prosecution remain? Is it illegal to travel or go to public events if you've tested positive for COVID? What happens if you give someone COVID?
This article reviews what criminal charges are possible under state laws and how state and federal emergency orders come into play.
In many cases, our lives don't stop when we get sick with a cold, sore throat, or the flu. People take cold medicines and go to work, school, restaurants, and events. These people are not breaking any laws. Is it the same with COVID? Not exactly.
Unlike the common cold, COVID is an infectious disease that has clear public health implications. This puts it on par with diseases like SARS, Ebola, and HIV. Many states have criminal transmission laws that penalize the intentional transmission of these types of infectious or communicable diseases. In states that don't have a law specific to the transmission of diseases, prosecutors may rely on assault and battery laws, which prohibit intentionally causing another bodily harm.
Does this mean if you test positive for COVID and go to a grocery store to get soup and orange juice, a prosecutor could file criminal charges against you? Not likely.
To commit a crime, most transmission laws require that the person intended to transmit the disease and engaged in behavior that risked transmission. Going to the store for necessary medicine or food (and wearing a mask) doesn't likely fall under this category. But if you intentionally coughed on others, sneezed on items, or otherwise acted in a way so as to intentionally spread the virus, that would be a different situation. Below, we discuss what conduct these laws penalize.
States generally have two options for prosecuting people who recklessly or intentionally spread COVID or other infectious diseases: communicable disease statutes and general criminal laws.
Quite a few states have communicable (contagious) disease statutes on the books. A majority of states passed these laws in the early years of the HIV epidemic. To commit a crime, communicable disease laws typically require that defendants:
Some state laws also require the transmission of the disease.
Intent. As noted above, because many of these laws require intent to transmit the disease, the average person who goes to the store or does other daily activities after testing positive for COVID hasn't necessarily committed a crime. Even if you decided to travel while positive for COVID, taking precautions, such as wearing a mask while around others, would tend to negate the required elements of intent and engaging in conduct that poses a substantial risk of transmission.
Proof of intent. But let's say you hopped on an airplane, bus, or cruise ship right after testing positive without taking any precautions to prevent the spread in a situation where close contact is unavoidable. In this situation, a prosecutor (and jury) might decide you intended to spread the disease and engaged in conduct that posed a substantial risk of transmission to others. Or if you went to a store and started spitting on food items, this type of behavior would likely establish intent to spread the virus.
Penalties. The successful prosecution of a criminal transmission case depends highly on the facts and circumstances of the individual case. Penalties for violating communicable disease laws vary from state to state, but most categorize the crime as a misdemeanor.
In states that don't have criminal transmission laws, prosecutors can use general state laws to prosecute people who intentionally spread or threaten to spread COVID.
Assault and battery. The most common crimes to charge under general state laws for transmitting a disease are 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 knowing they have COVID could 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 and the targeted victim.
Terroristic threats. State prosecutors may be able to file terroristic threat charges against people who deliberately cough, spit, or touch others while claiming to be infected with a communicable disease. In terroristic threat cases, prosecutors don't have to prove that the defendant actually transmitted the disease to the victim. Prosecutors must only prove that the defendant made a clear, immediate, and unconditional threat to cause another bodily harm. For instance, in 2020, prosecutors in New Jersey filed terroristic threat charges against a man who deliberately coughed on grocery employees and then told them he had COVID.
As noted above, criminal laws exist that make it possible to file charges against someone for intentionally spreading COVID or threatening to do so. But prosecutors have the discretion of whether or not to file charges against someone. Prosecutors are unlikely to file charges unless someone engages in conduct clearly meant to harm others. Filing charges in less serious cases can backfire because it could make people less willing to get tested out of fear of prosecution.
State criminal transmission laws are just one method of enforcement to deter and stop the spread of COVID. Initially, local, state, and federal public health officials employed isolation and quarantine orders and travel restrictions to this end. A violation could have meant civil or criminal penalties. Are these orders still in effect? Most are not.
Here are a couple of common questions regarding COVID emergency orders.
No. Most states no longer have mandatory isolation or quarantine orders but rather set guidelines for people to follow. While it's not illegal to go out in public after testing positive for COVID (unless your aim is to intentionally spread the disease—see above), it's a good idea to follow CDC (Centers for Disease Control and Prevention) and state health guidelines to prevent further spread of the virus.
Also, COVID remains a threat as new variants keep surfacing. Another surge could result in states and local governments issuing new emergency orders, so it's good to stay aware of what's happening in your area. Local and state governments can use police power functions to enforce these orders, and a violation could result in arrest and civil or criminal penalties.
Not in the United States. As part of its federal authority, the CDC can monitor people arriving to the United States and traveling between states for infectious diseases. The federal government used these powers at the start of the pandemic to isolate and quarantine cruise ship passengers exposed to COVID and to implement travel bans and restrictions. In some cases, a violation resulted in criminal penalties.
While most travel restrictions are no longer in place, a new surge could change that. So, it's important to keep abreast of changing travel restrictions, especially when traveling abroad (those rules may be different). It's also possible that if you travel on a cruise ship when an outbreak occurs, you could be forced to remain on the ship under a quarantine order. You should check with your cruise line about their COVID policies.
If you have questions regarding current COVID restrictions, looking up your county or state's health department is a good place to start. You can also find information on the following websites:
For information regarding criminal charges, contact a criminal defense attorney in your area.