COVID-19: The danger of criminalisation

COVID-19: The danger of criminalisation

Comment & Analysis

In March South Africa passed  Disaster Management Regulations in response to the COVID-19 pandemic.  The regulations require a person who has tested positive for the virus, is suspected of having contracted the virus, or has been in contact with a carrier of the virus, to be placed in isolation or quarantine.

The Regulations make it a crime for someone who knows they have the virus to refuse to be quarantined. Since the start of the lockdown in March 2020, at least three cases were reported of people contravening the Regulations in this manner. In the latest case, an Eastern Cape taxi driver who was informed that he had tested positive for COVID-19 nevertheless continued to transport seven people from the Western Cape, putting them at risk of infection.

However, instead of being charged in terms of the Regulations that could mean a fine or imprisonment up to six months (or both) upon conviction, the driver was charged with attempted murder.

Public health lawyer, Safura Abdool Karim, in an article published in the SA Medical Journal, correctly points out that in using existing criminal laws, the accused faces a sentence that far exceeds the maximum penalty set by the Regulations.

In the past a similar approach has been taken regarding the intentional transmission of HIV.

What lessons can we learn from this history?

Stigma and discrimination

Although South Africa has implemented a largely successful HIV programme in recent years, it is no stranger to how disease-related stigma can be counter-productive to a public health strategy. Stigma continues to be a barrier to testing, disclosure and the uptake of antiretroviral treatment (ART). Around one in ten people living with HIV in South Africa do not know they are HIV-positive and of those who know, only seven in ten are on treatment, according to figures from the Thembisa model. The short-fall in these numbers will partly be due to stigma.

Stigma is underpinned by many factors that impact the sustained uptake of treatment. These factors can include fear of abandonment by family and friends, lack of understanding of the illness, and can be compounded by the systemic difficulties in accessing healthcare services.

There are already worrying signs of COVID-19-related stigma and discrimination in South Africa. Earlier this month residents of KwaDukuza in KwaZulu-Natal protested against the Untunjambili Hospital admitting 10 people who tested positive for COVID-19. (Spotlight reported on COVID-19 stigma both in the Eastern Cape and KwaZulu-Natal.)

Law is not always the solution

To single out a disease through specific laws or the use of existing prosecution mechanisms, places an unreasonable burden and expectation on the criminal justice system to effectively address people’s behaviour – behaviour deeply rooted in complex socio-economic environments. As a public health strategy criminalisation does little to re-affirm that the fight is against the virus itself and not the people who test positive. If anything, it makes stigma worse.

In 2013 the High Court (in the Phiri case) found an HIV counsellor guilty of attempted murder for having unprotected sex with his former partner without disclosing his HIV positive status. The verdict was upheld on appeal. The Court reasoned that it is unnecessary to prove that HIV was transmitted, but rather that it suffices to convict offenders for attempted murder where the mere exposure to HIV transmission has the potential of diminishing the lifespan of another person.

In its decision, however, the Court failed to take into account that the accused was on ART, which reduced the risk of HIV transmission. It therefore failed to distinguish between levels of risk. The judgment has been heavily criticised as “unscientific” and setting a dangerous precedent when facing a public health crisis. Scientific evidence has since clarified that people on ART with suppressed HIV do not transmit the virus.

HIV has been well studied and the transmission risks and impacts on life-expectancy are well understood, but the same cannot be said for COVID-19, a still very new disease.

The risk of transmission of SARS-CoV-2 (the virus that causes COVID-19) is still the subject of intense research. Questions remain about how long the virus survives in different settings, just how effective different types of masks are, and much more. This is further complicated by the fact that people can transmit the virus before they develop symptoms. There is also a lot more to learn about how the virus works and impacts the body, how age and comorbidities impact the risk of serious illness and death, and the efficacy of various experimental treatments.

Given all this uncertainty, it is not clear how intentional COVID-19 transmissions can be prosecuted based on scientific and medical evidence in a manner that is consistent, fair and achieves a just and equitable outcome. Too little is known both about the transmission risk of any particular act and the risk to the life of someone who becomes infected. And all that is before even considering the difficulties in proving that a person contracted the virus from a specific other person.

Weighing up the arguments for and against criminalisation

Civil society, public health experts and researchers’ arguments against criminalisation as a public health strategy, are mostly rooted in lessons drawn from the HIV epidemic.

The essential argument is that the overly broad application of criminal law to intentional COVID-19 transmissions may lead to discriminatory and ineffective practices. Such practices can undermine the implementation of the public health strategy when people are reluctant or refuse testing and treatment in order to avoid stigma and/or potential prosecution.

These arguments are also informed by the widely acknowledged reality that although the virus can infect anyone, its impact is disproportionally experienced by the most vulnerable in our society. We cannot ignore that a majority of people are confronted with extreme conditions of poverty and inequality, such as overcrowded homes, insecurity of income and little to no access to food and water. Criminalisation might thus imply the indictment of a significant part of the population who as a matter of course find themselves at high risk of infection and of transmitting the virus.

On the other hand, arguments supporting criminalisation are typically founded in the belief that when an individual purposefully poses a health risk to the public, action must be taken against them. An implied argument here is that a specific legal sanction (criminalisation) would deter others from doing the same.

The lesson from HIV appears to be that the potential benefits of such a deterrent are outweighed by the increased stigma and negative public health consequences. Maybe even more so than with HIV, it is critical that people willingly get tested for COVID-19 if they are symptomatic and willingly quarantine or isolate when asked to do so.

Legal mechanisms already exist

Existing regulations under the National Health Act’s (NHA) Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions, effectively balances the needs of public health and individual rights.

The NHA Regulations provide for a court order to be obtained when the carrier, or potential carrier of a communicable disease, refuses mandatory isolation or quarantine. The person retains their right to legal representation and is offered counselling services informing them of the risk associated with the condition for the public, including themselves.

There is no need for any new laws beyond this, nor is there any reason to charge people with murder, except in truly exceptional circumstances, although such exceptional circumstances are hard to imagine in the context of COVID-19.

More importantly though, looking to the criminal justice system to address the underlying problems here is to look for answers in the wrong place.

Some successes of the HIV programme can no doubt be attributed to the government eventually conceding that investing in science and human rights-based educational programmes as a response to the HIV epidemic reduces stigma and encourages protection and due care on an individual and community level.

Ultimately, the more people are empowered by accurate information, empathetic public messaging and law enforcement, and access to quality and dignified healthcare services, the more they will be able to protect themselves and others. This is the critical lesson we should learn from HIV.

*Baduza is a legal researcher for Section27’s Health Rights Programme.

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