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Criminalizing COVID-19 transmission via sexual assault law? No. And that means no | Lee Seshagiri

Tuesday, April 28, 2020 @ 11:44 AM | By Lee Seshagiri

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Lee Seshagiri %>
Lee Seshagiri
A global pandemic can give you time to think. Or at least it might for those lucky souls whose home lives have not morphed into full-time daycare operations, home schooling programs, professional cooking and cleaning services and remotely connected home offices — complete with Zoom capability, of course! These are truly strange and dangerous times. And not just in my kitchen.

For those with time on their hands, many odd ideas have been spawned. Lawrence David’s article “COVID-19 and consent to sexual activity” evidences one such example. It appears in The Lawyer’s Daily on April 21.

In what might be described as a paroxysm of prosecutorial projectionism, David suggests that knowingly withholding a positive COVID-19 diagnosis from a prospective sexual partner may give rise to criminal liability for sexual assault. It is argued that the law on HIV non-disclosure may be transmogrified to justify sexual assault prosecutions during the current global pandemic. The theory is that a failure to disclose one’s corona-status vitiates consent to sex. Coughing and copulation ought not mix.

Where to begin in response? Perhaps by noting that the criminal law usually targets pre-existing social evils, rather than searching out new and creative opportunities to send people to federal penitentiaries. I might stand to be corrected, but it seems highly unlikely that there is any pressing or substantial need for this novel prosecutorial position in response to the novel-coronavirus. 

Furthermore, our current public health climate would seem better served by avoiding the investigation, arrest and courtroom prosecution of COVID-19 carriers and those exposed thereto.

Can you imagine the litigation required on causation in this era of “community transmission?” And what about the ethics of COVID-19 remands? Will face masks be provided at the courtroom door? Presumably we would delay court appearances and trials until after everyone is off their ventilators.

Adopting the HIV non-disclosure template requires COVID-accused to be aware of their positive status. That requires testing — testing that may or may not be available to asymptomatic carriers. Would-be COVID criminals are likely symptomatic sufferers post-positive-test. My strong suspicion is that those unfortunate few will be seeking pain relief and personal protective equipment rather than prospective partners for whom they might “swipe right.”

Why limit ourselves to sexual assault prosecutions? The net of criminal liability could be cast even broader under the offences of assault causing bodily harm, aggravated assault or perhaps administering a noxious substance. That single mom covertly coughing in the grocery store? Lock her up! That delivery courier contaminating our next precious Amazon Prime delivery? To the jail! Undoubtedly the criminalization of COVID will succeed where social distancing has failed. Just look at the fantastic results we’ve achieved by way of general deterrence in sentencing!

Perhaps most troubling of all, the COVID criminality thesis fails to recognize that the criminalization of HIV non-disclosure has proved to be both stigmatizing and counterproductive to the worldwide public health effort against HIV-AIDS.

Post-Mabior (R. v. Mabior 2012 SCC 47), Canadian criminal courts have heard sworn expert testimony that the stigma associated with HIV criminalization may actually reduce the incentive for viral testing, placing the public welfare at greater risk instead of improving it. In 2014, leading Canadian HIV experts signed a Consensus Statement stressing that: “A poor appreciation of the science related to HIV contributes to an overly broad use of the criminal law against individuals living with HIV in cases of HIV nondisclosure.”

The same caution has been echoed internationally, including by way of the 2016 U=U (Undetectable = Untransmittable) Statement, which sought to curtail unnecessary prosecutions for HIV non-disclosure. In a positive step, recent federal and provincial prosecution directives have imposed limits on HIV non-disclosure prosecutions in recognition of evolving science and the potentially negative impacts of the criminal law on public health.

Whether the criminalization of COVID-19 would have a positive or negative impact on public health is of course unclear. Maybe we should experiment with the criminal law. Maybe we should experiment with hydroxychloroquine. Or maybe we might all be better off staying at home.

Lee Seshagiri is a senior staff lawyer with Nova Scotia Legal Aid. He acted as appellate counsel in the successful HIV non-disclosure appeal in R. v. Thompson 2018 NSCA 13. All views are his own.

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