Disease Transmission and the Criminal Law: A Growing Concern?

Abstract

States have a responsibility to protect their citizens and at times have to take coercive action to isolate or incapacitate those who carry infectious diseases and threaten the health of others. Such measures have included the fourteenth-century Venetian requirement for ships arriving from plague infected ports to sit at anchor for forty days 1 before landing; the forcible medical examination and detention of female sex workers under the Contagious Diseases Act 1864 in England; 2 and the closure of businesses and the cancellation of Christmas celebrations in Sierra Leone in 2014 in response to the Ebola epidemic. 3 Article 5 of the European Convention on Human Rights (the right to liberty and security) provides an exemption for 'the lawful detention of persons for the prevention of the spreading of infectious diseases.. . '. 4 Th ere are many methods that states can deploy for dissuading individuals from spreading infection, including providing education, off ering encouragement or incentives, and imposing civil regulations. 5 Until recently, few societies have attached criminal liability to disease transmission. 6 Whilst public health orders lack the expression 1 Th e word 'quarantine' is derived from the Italian words quaranta giorni meaning 'forty days' (E. Tognotti , ' Lessons from the history of quarantine, from plague to infl uenza A ' , Emerging Infectious Diseases , 19 : 2 (2013), 254. 2 Similar versions were enacted in most of the colonies, see, for example, P. Levine , ' Venereal disease, prostitution, and the politics of Empire: the case of British India' , Journal of the History of Sexuality , 4 (1994), 579. 3 'Ebola crisis: Sierra Leone bans Christmas celebrations'. www.bbc.co.uk/news/ world-africa-30455248 , 12 December 2014. 4 Article 5(1)(e) European Convention on Human Rights and Fundamental Freedoms. 5 State action is not always necessary. Th e villagers of Eyam in Derbyshire, England, heroically isolated themselves in 1665-6 to stop the spread of the plague (W. Wood , Th e History and Antiquities of Eyam (London: Th omas Miller, 1842)). 6 Th e Canadian Criminal Code included an off ence of knowingly transmitting a venereal disease, but this was repealed in 1985, largely because it had not been used since 1922