As the rate of new coronavirus (COVID-19) infections continues to boom across the United States, many states are using criminal laws to punish people who intentionally or recklessly spread the virus.
Some states have specific statutes prohibiting the intentional exposure and transmission of communicable (contagious) diseases, like the coronavirus. Other states use general criminal laws to prosecute people who purposely expose or threaten to expose others to the virus.
More commonly, states are using criminal penalties to enforce public health interventions, like quarantines and lockdowns, to limit the spread of the virus.
States generally have two options for prosecuting people who recklessly or intentionally spread the coronavirus: communicable disease statutes and general criminal laws.
Some states already have communicable (contagious) disease statutes on the books. A majority of states passed these laws in the early years of the HIV epidemic. Communicable disease laws typically require that defendants:
The penalties for violating communicable disease laws vary significantly from state to state. Most states categorize the crime as a misdemeanor.
Critics of communicable disease laws argue that punishing people who spread the coronavirus might have negative public health impacts. First, booking people with the coronavirus into custody undermines efforts to stop the spread of the virus in jails and prisons, where physical distancing is impossible. Second, communicable disease laws (like HIV laws) might make people less willing to get tested and disclose their status because they fear criminal prosecution and discrimination.
Law enforcement and prosecutors are also using general state and federal laws to prosecute people who intentionally spread or threaten to spread the coronavirus.
Terrorism and terrorist threats. At the federal level, the Department of Justice (DOJ) formally announced that the coronavirus appears to meet the statutory definition of a “biological agent,” and people who intentionally spread the virus could be prosecuted for terrorism. For example, an infected white supremacist who uses a spray bottle to spread infectious bodily fluids in synagogues can be prosecuted under federal anti-terrorism laws.
State prosecutors have already filed terrorist threat charges against people who deliberately cough, spit, or touch others while claiming to be infected with the coronavirus. In terrorist threat cases, prosecutors don’t have to prove that the defendant actually transmitted the coronavirus to the victim. Prosecutors must only prove that the defendant made a clear, immediate, and unconditional threat to transmit the virus.
Assault and battery. Charges for “coronavirus coughers” might also include 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 while yelling “corona” can 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. Many states punish crimes more severely during declared emergencies.
Child endangerment. Increasingly, prosecutors are throwing the book at people who violate emergency orders for social distancing. For example, a woman who insists on hosting a birthday party in violation of a stay-at-home order can be charged with violating the executive order and one count of child endangerment for each child at the party.
Public health officials employ isolation and quarantine practices to stop or limit the spread of disease. Officials use isolation to separate people who are ill with an infectious disease from people who are healthy. For example, hospitals isolate patients with the coronavirus. Officials quarantine people who might have been exposed to an infectious disease to see if they become ill. Isolation and quarantine can be voluntary or imposed by law.
The commerce clause of the United States Constitution authorizes the federal government to isolate and quarantine. As part of its federal authority, the Centers for Disease Control and Prevention (CDC) can monitor people arriving to the United States and traveling between states for infectious diseases. The federal government recently used these powers to isolate and quarantine cruise ships passengers exposed to the coronavirus and to implement travel bans and restrictions.
States can use police power functions to enforce isolation and quarantine orders. Some states penalize isolation or quarantine violations in statute. These laws can vary from state to state and can be specific or broad. Coronavirus quarantines typically last 14 days (the incubation period for the virus) and must be in the least restrictive setting necessary to maintain public health.
In most states, breaking a quarantine order is a misdemeanor. Officials in Illinois recently charged a man with misdemeanor reckless conduct for ignoring medical advice to self-isolate based on exhibiting symptoms of COVID-19. Judges in Kentucky and West Virginia have authorized use of GPS monitoring bracelets for people who've ignored quarantine orders after testing positive for the virus. Check out this resource from the National Conference of State Legislatures on State Quarantine Laws and Regulations.
If you have been isolated or quarantined or you have questions about criminal liability for spreading the coronavirus, talk to a local attorney who specializes in criminal law. For information on how to safely consult with an attorney, check out Nolo's Effects of COVID-19 on Legal Practice: How to Communicate with Your Lawyer.
For an in-depth discussion of key legal issues related to the coronavirus pandemic, see Nolo's special coverage: The Law and Your Legal Rights During the Coronavirus Outbreak.
Updated: April 17, 2020.