Spreading the common cold doesn't carry criminal consequences. But intentional or reckless behavior that spreads a disease with serious public health consequences—such as HIV, SARS, Ebola, or COVID-19—can result in criminal charges.
A majority of states have communicable disease laws that make it a crime to expose another person to a contagious disease on purpose. Even without a specific communicable disease statute, all states have general criminal laws—such as assault, battery, and reckless endangerment—that can be used to prosecute people for spreading diseases intentionally or recklessly. And if emergency public health orders are in place, prosecutors can charge people with violations of quarantine and other emergency orders.
A communicable disease is an infectious disease that spreads from one person to another in a variety of ways, including contact with another person, contact with a contaminated surface or object, or bites from insects or animals. The Centers for Disease Control and Prevention (CDC) maintains a national tracking system for infectious diseases.
Criminal communicable disease laws typically focus on infectious diseases with serious public health implications that spread through contact with an infected person's blood, saliva, mucus, or other bodily fluids. Some states have laws that are specific to a particular disease, like HIV, or a category of diseases, like sexually transmitted diseases (STDs). Other states have laws that address communicable diseases generally. These laws and their punishments differ significantly among states.
In most states, people can face criminal prosecution for spreading a communicable disease if they intentionally or recklessly expose others to the disease. For example, it can be a crime to:
For offenses involving sexual activities, informed consent by one's partner may be a defense.
Law enforcement and prosecutors can also charge people who intentionally spread or threaten to spread communicable diseases under general criminal laws.
Prosecutors can charge assault and battery (inflicting or attempting to inflict bodily injury on another) if an individual knowingly exposes others to a communicable disease. For example, people who transmit undisclosed STIs, like chlamydia or herpes, have been convicted of simple assault for inflicting bodily injury on another. In cases where people have knowingly exposed others to an undisclosed, life-threatening infection, like HIV or hepatitis C, prosecutors have filed charges for aggravated assault (assault causing serious bodily injury) or assault with a deadly weapon, on the theory that the bodily fluid of HIV-positive defendants is a deadly weapon.
Reckless endangerment occurs when a person's conduct places or might place another person in danger of death or serious injury. In some states, individuals infected with HIV have been convicted of reckless endangerment for behavior, such as having unprotected sex, which might place others in danger of serious injury or death.
Harassment and terrorist threat statutes target people who intentionally annoy, torment, or terrorize people with their behavior. In the context of communicable diseases, prosecutors could file harassment and terrorist threat charges against people who deliberately cough, spit, or touch others while claiming to be infected with a contagious disease.
Unlike most communicable disease laws, harassment and terrorist threat charges generally don't require prosecutors to prove that the defendant actually had an infectious disease or transmitted a disease to the victim. Prosecutors must only prove that the defendant made a clear, immediate, and unconditional threat to transmit the virus.
During emergency situations involving a communicable disease outbreak, states have emergency police powers to enforce orders to protect public health and safety. Examples of public health and safety orders include curfews, travel bans, shelter-in-place orders, quarantine orders, and orders to wear masks in public places. In most states, breaking a public health and safety order is a misdemeanor (see below).
Depending on the criminal charges filed, a person could face misdemeanor or felony penalties. Misdemeanors generally carry penalties of up to a year in jail, whereas felony penalties involve more than a year's incarceration.
Penalties for transmitting a communicable disease often depend on the nature of the disease and the means of exposure. For example, Utah makes it a misdemeanor to willfully introduce an infectious disease into a community. However, the penalty increases to a felony if a person willfully exposes a police officer or corrections officer to an infectious disease by spitting, coughing, or otherwise causing blood, saliva, fecal matter, or vomit to make contact with the officer. (Utah Code §§ 26-6-5, 76-5-102.6 (2022).)
Other crimes, like assault, battery, and reckless endangerment, base penalties on the harm or threatened harm to the victim (such as bodily harm or serious bodily injury). Penalties for harassment or terrorist threats will generally vary depending on the circumstances of the crime (repeat violations, mass threats, or bias crimes). Violations of public health emergency orders typically carry misdemeanor penalties, but government officials can also require a person to comply with the order.
States might also have sentence-enhancement statutes that increase penalties based on the defendant's knowledge of transmitting a particular communicable disease. Sentence enhancements do not criminalize a behavior; they increase the sentence length when a person commits a crime while infected with a disease. For example, a defendant who engages in a misdemeanor act of prostitution might face felony charges if the defendant knowingly engaged in prostitution while having HIV or an STD.
If you have been accused of a crime for spreading a communicable disease, talk to an experienced criminal defense attorney as soon as possible. Because of the wide differences in how states approach communicable disease crimes, you need to find an attorney who knows the details of the laws in your state and who has experience dealing with the local courts, judges, and prosecutors.
You might also want to consult with a personal injury lawyer. The intentional or negligent transmission of STDs (and potentially other viruses like COVID) can give rise to a personal injury lawsuit.