- Shreyas Sinha
I. Introduction
As human civilisation grappled with the Covid-19 pandemic (now in its third year), governments across the world implemented legal measures to ‘break the chain’ and enforce pandemic-appropriate behaviour. Initially, these measures were implemented as ‘guidance’ or general guidelines. However, as the true extent of the pandemic was assessed, governments turned to implement harsh, almost-draconian measures, including measures backed by the force of criminal sanction. Lockdown violations were criminalised, with the penalty ranging from significant monetary fines to imprisonment. Furthermore, mask mandates were issued, with violations resulting in fines and/or imprisonment.
The use of criminal law to prohibit particular forms of conduct in times of grave public health emergencies, such as in the case of communicable diseases like Covid-19, is nothing new. For instance, mask mandates backed by criminal sanction were implemented in the United States during the 1918 Spanish flu and were as controversial then as they are today. Additionally, the use of criminal law during the AIDS epidemic continues to be a topic of vigorous debate in modern times.
This paper attempts to analyse the use of criminal law as a conduct regulative tool when dealing with public health crises involving communicable diseases. More specifically, the paper looks at how criminal law has been used in two contexts – the AIDS epidemic and the Covid-19 pandemic – from outcome-and principles-based lenses and then uses a Law and Economics perspective, in conjunction with existing approaches to criminalisation, to reason out principles that governments ought to consider when deploying the criminal law to combat communicable diseases. This analysis is not necessarily restricted to one specific legal jurisdiction. However, reference has been made to legal rules and experiences in India, the United States, and the United Kingdom.
The paper proceeds by – first, elaborating upon the role of criminal sanction in situations involving communicable diseases, with reference to the AIDS epidemic and the Covid-19 pandemic; second, analysing criminalisation vis-à-vis communicable diseases from the perspective of the ‘harm principle’; third, using Law and Economics as a supplementary tool, in conjunction with the harm principle, to infer principles that governments ought to keep in mind when using the criminal law in public health emergencies involving communicable diseases; fourth, concluding with final observations.
II. Criminal Law and Communicable Diseases: The Story So Far
Broadly speaking, governments follow two approaches when deploying the criminal law to tackle communicable diseases – (i) through special legislation; and (ii) through general criminal law provisions. These two approaches, it must be noted, are not mutually exclusive, i.e., the mere presence of one particular approach in the statute books does not preclude law enforcement from taking the other route when both options are open.
In India, for instance, the Union Government and the various State Governments have utilised powers under three different laws to tackle the Covid-19 pandemic – the Epidemic Diseases Act, 1897 (special legislation), the Disaster Management Act, 2005 (‘DMA 2005’) (special legislation), and the Indian Penal Code, 1860 (‘IPC’) (general legislation). The DMA, in particular, has been at the forefront of India’s response to Covid-19 as it grants the Union and State Governments sweeping powers to issue broad, binding directions via subordinate legislation. Subordinate legislation framed under the DMA 2005 has been used to criminalise violations of Covid-19 restrictions. On the other hand, the IPC too contains provisions that, in a more modest way, provide for prosecution in cases related to communicable diseases. However, there has been a marked proclivity, on part of law enforcement, for taking the DMA 2005 route when tackling the Covid-19 pandemic. A good reason for doing so is the broad powers that subordinate legislation framed under the DMA 2005 can grant as opposed to the provisions of the IPC which are narrow and not flexible enough to respond to a dynamic situation.
With regards to the AIDS epidemic, due to the relatively individualised nature of disease communication (i.e., where mass-scale disease communication is not possible), prosecutions in India have been grounded in Sections 269 and 270 of the IPC. However, law enforcement authorities have also resorted to other general provisions like Sections 319 (hurt), 323 (voluntarily causing hurt), 406 (criminal breach of trust), etc. India does not have any specific legislation that criminalises conduct vis-à-vis the AIDS epidemic or other sexually-transmitted diseases.
In the United Kingdom, to take another example, the criminal law approach towards tackling sexually-transmitted diseases and the Covid-19 pandemic has been somewhat similar to the Indian approach, i.e., using general criminal law provisions for prosecutions in cases involving sexually-transmitted diseases and using special legislation to tackle the Covid-19 pandemic. In the context of sexually-transmitted diseases, the law used in England and Wales for prosecuting people for transmission is the Offences Against the Person Act, 1861, which has been, through judicial decisions, adapted for diseases like HIV-AIDS. With regards to Covid-19, criminal offences were created under two laws – the Coronavirus Act, 2020 and the Public Health (Control of Disease) Act, 1984. The majority of new criminal offences, with regard to Covid-19, were introduced via statutory instruments issued under the Public Health (Control of Disease) Act, 1984. These offences were summary-only, i.e., offences adjudicated upon by a magistrate’s court. Criminal prosecution was an option only if “a fixed penalty notice was unpaid after 28 days and the relevant police force decided to prosecute”.
In the United States, in the context of Covid-19, different states have deployed varying degrees of criminal sanction in backing Covid protocols and mandates, ranging from using general criminal law provisions to executive orders issued under special laws. However, it is an accepted fact that criminalisation has been utilised extensively to enforce regulations ranging from mask mandates to lockdowns.[1] At the federal level, the U.S. Centers for Disease Control and Prevention (‘U.S. CDC’) has been issuing periodic, legally-binding regulations to control the spread of Covid-19. In the context of the AIDS epidemic and sexually-transmitted diseases, different states in the United States undertook a broad range of legal responses to the public health crisis. Broadly speaking, in the early years of the AIDS epidemic, various states, in response to widespread public paranoia, enacted stringent laws criminalising the transmission of the HIV. However, over the years, as more medical data has become available and governments across the world have come to better understand the nature of the diseases, there has been gradual decriminalisation.[2]
As one can infer, there is consistency in how governments approach public health emergencies involving communicable diseases inasmuch as they, in the case of mass-scale communicable diseases like Covid-19, resort to criminalising specific conduct via subordinate legislation issued under a special statute. In the case of individualised communicable diseases, such as HIV-AIDS, both approaches – criminalising conduct under general laws or enacting special laws – are followed.
What are the guiding principles that determine whether or not a government should deploy the threat of criminal sanction to enforce or regulate conduct in cases involving communicable diseases? From an analysis of how governments have responded to the AIDS epidemic (and other sexually-transmitted diseases) and the Covid-19 pandemic, it can be inferred that the harm principle has served as the lodestar, either explicitly or implicitly, for policymakers. This assertion is clarified in the next section of this paper.
III. The Harm Principle and Its Application to Communicable Diseases
One of the fundamental principles guiding the criminalisation process is that criminal offences should be enacted if and only if their enactment is absolutely necessary. Scholars have identified two basic considerations that a government must keep in mind when undertaking criminalisation – first, there must be a positive case for criminal law regulation, i.e., the activity sought to be regulated by the criminal law must be serious enough to warrant such regulation; second, it must be conclusively determined that the criminal law is the best possible mode of regulation for the activity concerned and that no other alternative is viable.[3]
Feinberg offers the most extensive exposition of the harm principle. He frames the principle as: “It is always a good reason in support of a penal legislation that it would be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and there is no other means that is equally effective at no greater cost to other values.”[4] The harm principle essentially propounds that there would be a positive reason in favour of criminalising a particular act if such criminalisation would prevent harm to others. The principle also operates as a negative constraint in that a government is not justified in criminalising an act if there is no harm or risk of harm. Thus, the harm principle acts as a legal limit on state power.
However, harm alone cannot justify criminalisation. There is another important element – wrongfulness. Ashworth and Holder argue that the wrongful assailment of another person’s interests or their abuse as a means to one’s satisfaction, i.e., wrongful conduct, must necessarily be taken in conjunction with harm in order to provide an adequate justification for criminalisation.[5]
This is the basic model of the harm principle that this paper utilises to analyse how criminal law tackles communicable diseases. Admittedly, there is a lot more nuance to the harm principle and an impressive body of scholarship has developed over the years. However, for the purposes of this paper, a standard ‘harm + wrongfulness’ approach is sufficient to analyse criminal law vis-à-vis communicable diseases.
It is indisputable that transmission of grave communicable diseases is an occurrence that a government would have a legitimate, rational, and justifiable interest in preventing. Mass-scale communicable diseases, like Covid-19, have the potential to cause widespread human suffering, economic devastation, and have a disproportionate impact on society’s most marginalised communities. There is an all-too-real risk of grave harm to society if the government does not take steps to prevent events that increase disease transmission.
In the case of sexually-transmitted diseases like HIV-AIDS, the fundamental risk posed by disease transmission remains, although it is relatively more individualised than in the case of a situation akin to the Spanish flu or Covid-19. The law here too has a legitimate, rational, and justifiable aim in preventing transmission from one individual to another in order to prevent harm or mitigate the risk of harm.
Governments’ responses to public health threats like the AIDS epidemic or the Covid-19 pandemic reflect this understanding of harm to society. Implicit in almost all acts of criminalisation that governments have undertaken to tackle these issues is a desire to prevent harm to the larger community. For example, mask mandates backed by criminal sanction are based on the understanding that non-masking on the part of an individual carries the risk of furthering transmission of Covid-19, which is a harm to society.
But what about ‘wrongfulness’? Criminal law theory insists that conduct cannot be criminalised on the basis of real or potential harm to society alone.[6] Instead, one must also consider whether the act being criminalised is wrongful in itself. This is where things get tricky. While a government has legitimate grounds to prevent actions that cause or run the risk of causing harm to society, it does not have a moral entitlement to criminalise conduct that is not wrongful in itself. Thus, since non-masking is not an act that is a wrong in itself, it would not be legitimate, from a principles-based perspective, to criminalise it. However, governments, in their criminal law responses to communicable diseases, have criminalised conduct that does not fall within the ambit of the ‘harm + wrongfulness’ model this paper has developed.
Does this mean that governments do not have adequate policy tools at their disposal to regulate conduct during times of public health emergencies? The answer is no. Governments do have the option of enacting administrative offences backed by non-criminal penalties to enforce appropriate conduct regulations without resorting to criminalisation with all its attendant aspects like stigma, social censure, etc.[7] And that is what they ought to have done in crises such as the AIDS epidemic or the Covid-19 outbreak instead of taking an approach wherein criminalisation was the first course of action.
There is great moral baggage that criminalisation entails, especially in terms of stigma. To be branded a ‘criminal’ or ‘offender’ by the State is to subject individuals to societal censure and disapprobation. In the context of communicable diseases, this problem becomes all the more acute. When the law criminalises specific conduct to prevent transmission, it has the unintended effect of driving individuals carrying the disease away from public health resources and the healthcare system due to the burden of stigmatisation imposed on them.[8] On a net basis, this ends up harming society more than the initial harm that the State intended to counteract by undertaking criminalisation.
So, all things considered, a true application of the harm principle (as the ‘harm + wrongfulness’ model) would require that a government contemplating deploying the criminal law in situations of public health emergencies must take a more holistic view which considers the intrinsic wrongfulness of the conduct sought to be criminalised.
However, the harm principle in itself does not provide a comprehensive theoretical framework for governments to consider when trying to deal with public health crises using criminal law. For example, scholars have noted that harm-principle based arguments can be misused into leading to overcriminalisation and unnecessary state control.[9] Furthermore, the harm principle, as stated and analysed in this paper, simply argues for a more holistic understanding of criminalisation approaches. It does not provide the substantive content of this understanding – what specific principles are governments supposed to keep in mind when deciding whether to deploy criminal law against communicable diseases? The next section of this paper, using a Law and Economics approach, attempts to provide an answer.
IV. Criminalising the Contagion: An Answer From Law and Economics
Law and Economics, or the economic analysis of law, essentially entails using the tools of microeconomics to analyse legal rules, mechanisms, and institutions. This paper uses a standard cost-benefit-incentive model to analyse the use of criminal law in tackling communicable diseases.
Posner argues that an individual engages in criminal conduct upon undertaking a rational cost-benefit analysis, i.e., the individual will commit a crime only when the expected benefit of that act outweighs the expected cost. The cost and the benefit can be monetary or non-monetary.[10] This is the preliminary analysis this paper undertakes.
Governments, by criminalising specific conduct, impose deterrent costs on that activity. The primary motive is to make it prohibitively ‘expensive’ for a person to indulge in the act that has been criminalised. So, the logical next step would be to impose so high a cost that any possible benefit that an individual may derive from engaging in that conduct is dwarfed. However, this base analysis ignores an important cost consideration – the avoidance cost on part of society.
As the stringency of criminal violations is raised (e.g., higher fines, lengthier prison sentences, etc.), two effects will play out – first, the public will be deterred from engaging in the act that has been criminalised (the intended aim of the government is achieved in this scenario); however, second, society will self-restrict itself from engaging in attendant socially-desirable activities due to the extremely high costs that it may have to bear in case of an accidental or unintentional violation of the law (the unintended consequence of criminalisation).[11] This is especially true in the case of public health emergencies involving communicable diseases considering that governments often criminalise normal, day-to-day activities that people habitually undertake.
One may argue that if the initial act of criminalisation is limited in scope and if adequate defences to the criminalised acts exist, there would be a low probability of accidental or unintentional violations of the law, therefore reducing avoidance costs on part of society. However, this argument ignores that the stringency of the criminal law punishment is directly proportional to the avoidance costs a government would want to prevent, i.e., even a very small risk of accidental or unintentional violation of the law would be enough, considering the stringency of the punishment, to induce society to not undertake attendant or borderline socially-desirable behaviour. So, if pandemic regulations over-criminalise various acts, then people would be induced to refrain from other socially-productive activities, which will, all things considered, be a net welfare reduction to society.
Furthermore, the point about how criminalisation vis-à-vis communicable diseases would run the risk of driving people away from public health resources and the public health system still stands. For example, consider the case of a person, X, who suspects that they are infected with Covid-19. X has, in the span of a few days, visited public places and, plausibly, could have acted as a spreader. It is assumed that X is rational and that the government has placed heavy criminal penalties on visiting public places in order to deter inadvertent or advertent Covid-19 transmission. X now has two options – to either approach public healthcare authorities and get tested or not do so. If X opts for the first option, they run the risk of being prosecuted under criminal law. However, if X opts for the second option, there is a larger cost to society in that a possible Covid-19 case has gone undetected without appropriate contact tracing. Since X is a rational, self-interested actor, they will opt for the second option in order to minimise the risk of criminal sanction. Indeed, this has been one of the primary concerns with governments’ approach to Covid-19 vis-à-vis criminal law.[12] Therefore, indiscriminate or knee-jerk criminalisation, often based on incomplete scientific facts and misperceived harm to society, can actually cause a net welfare loss to the public at large.
The goal of criminal law policy here, then, must be to strike a balance and implement those measures that do not entail a net welfare loss to society. This is where incentives come in. The objective, during a public health crisis, must be to incentivise contact and effective communication between the public and the healthcare system, whilst simultaneously not disincentivising socially-productive behaviour. Thus, policymakers should not deploy the criminal law in situations where said deployment would disincentivise individuals from approaching healthcare professionals for fear of prosecution. Nor should policymakers set the costs of criminalised conduct so high that society, due to the fear of legal violations, restricts itself from engaging in otherwise socially-desirable behaviour.
So, what are the broad principles that governments ought to keep in mind when considering deploying criminal law in cases involving communicable diseases?
First, governments must consider net cost-benefit to society and the public exchequer when deciding what conduct to criminalise, i.e., it must factor in the cost of enacting and enforcing these laws vis-à-vis the deterrent effect they purportedly have.
Second, governments ought to factor in avoidance costs incurred by society when proscribing conduct with the threat of criminal sanction. Governments should not impose criminal penalties that will cause society to refrain, out of fear and caution, from otherwise socially-desirable conduct, thereby causing a net welfare loss to the community.
Third, governments should not deploy criminal law in a manner that would disincentivise public contact with the healthcare system or drive people away from seeking healthcare resources. Not only does this cause a net welfare loss to society and restricts governments from effectively implementing crisis control measures, but it also causes a humanitarian loss, particularly to marginalised communities.[13]
These principles, when considered in conjunction with the harm principle (understood as the ‘harm + wrongfulness’ model), offer a sound theoretical framework for governments to consider when enacting criminal law measures in the context of communicable diseases. Of course, these principles are not exhaustive and there may well be additional nuances, aspects, etc. that could be considered by governments.
V. Conclusion
In conclusion, this paper has analysed existing criminal law approaches to communicable diseases from the perspective of the harm principle (‘harm + standard’) and a Law and Economics lens (‘cost-benefit-incentive’). These principles, albeit limited in their scope (due to the nature of public health crises in general and the scope of this paper in particular), can offer guidance to policymakers as governments try to navigate their way through the third year of the Covid-19 pandemic.
[1] Katherine Drabiak, ‘The Intersection of Epidemiology and Legal Authority: Covid-19 Stay at Home Orders’ (2021) 18(2) Rutgers Journal of Law & Public Policy 1. [2] Erin Langley and Dominic Nardi, Jr, ‘The Irony of Outlawing AIDS: A Human Rights Argument Against the Criminalization of HIV Transmission’ (2010) 11 Georgetown Journal of Gender and the Law 743. [3] AP Simester and others (eds), Simester and Sullivan’s Criminal Law: Theory and Doctrine (6th edn, OUP 2016) 659. [4] Ibid 660. [5] Andrew Ashworth and Jeremy Holder, Principles of Criminal Law (7th edn, OUP 2013) ch 2. [6] Tatjana Hornle, ‘‘Rights of Others’ in Criminalisation Theory’ in AP Simester, Antje Du Bois-Pedain, and Ulfrid Neumann (eds), Liberal Criminal Theory: Essays for Andreas Von Hirsch (Hart Publishing 2014). [7] Ashworth and Holder (n 5). [8] Ceri Evans, ‘The Impact of Criminalising Disease Transmission on the Healthcare Professional-Patient Relationship’ in Catherine Stanton and Hannah Quirk (eds), Criminalising Contagion: Legal and Ethical Challenges of Disease Transmission and the Criminal Law (CUP 2016). [9] Hornle (n 6). [10] Richard Posner, Economic Analysis of Law (3rd edn, Wolters Kluwer 1986) 205-06; ‘An Economic Theory of the Criminal Law’ (1985) 85(6) Columbia Law Review 1193. [11] Richard Posner, Economic Analysis of Law (3rd edn, Wolters Kluwer 1986) 207. [12] Naomi Seiler and others, ‘The Risks of Criminalizing COVID-19 Exposure: Lessons from HIV’ (2020) 24(1) Human Rights Brief 5. [13] Aziza Ahmed and Jason Jackson, ‘Race, Risk, and Personal Responsibility in the Response to Covid-19’ (2021) 121(3) Columbia Law Review 47.
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