Lawrence O. Gostin
Restrictions of the Person: Civil Confinement and Criminal Punishment
Measures to control communicable diseases are
not limited to biological approaches. Individuals known or suspected of
being contagious may be subjected to civil confinement (isolation, quarantine,
and compulsory hospitalization) and criminal punishment for knowing or
willful exposure to disease. Society’s methods of coping with epidemics,
therefore, include separation of contagious persons from the rest of the
population and punishment for engaging in risk behaviors.
We like to think that these are thoughtful public policies based solely on the sciences of public health and medicine. But the history of infectious disease control teaches a different lesson. Feelings about infectious disease are sometimes visceral—founded on fear, stereotype, and enmity. Individuals with disease are blamed for epidemics, viewed as vectors of infection rather than persons in need of care and support. During various times in history disfavored populations became targets of coercion—e.g., racial or religious minorities, commercial sex workers, injecting drug users, and gay men. Animus toward those with infectious disease can be confounded with deep-seated prejudices against marginalized communities.
Even when the exercise of compulsory powers is necessary to prevent the transmission of infectious disease, it is important to consider the effects on individual freedom and dignity. Infectious disease control powers are among society’s most coercive measures. Civil confinement and criminal punishment deprive individuals of their liberty. In a democratic society, therefore, these coercive powers should be carefully justified. We have to balance the public health interests of society against the freedom of the individual.
Personal control measures also raise important issues of justice when they are directed against unpopular individuals or groups. Public health powers, like all benefits and burdens in society, need to be allocated fairly. Power exercised in an arbitrary or discriminatory manner is problematic. Recall the discussion of Jew Ho v. Williamson in chapter 7 where San Francisco health officials quarantined an area of the city where the Chinese American community lived. The city exempted specific homes within the quarantine area that belonged to non-Asians.
Decisions about whether to use compulsory powers, and against which groups, are often influenced by social fears and political pressure. It is difficult to exaggerate the dread caused by disease epidemics and the destabilizing effects on people and their communities. The public places intense political pressure on elected representatives to “do something” to protect the populace. The exercise of compulsory powers represents the most visible expression of government’s determination to act decisively, whether or not there is sufficient scientific evidence of effectiveness.
Epidemics, and society’s response, can also powerfully affect business interests and the economy. A public health decision that a disease outbreak is caused by contaminated meat or fruit can devastate an industry. In the late 1990s, for example, North America experienced a major outbreak of cyclosporiasis (a parasitic disease that causes gastroenteritis). Public health agencies preliminarily announced that strawberries may have been a vehicle of infection, but later concluded that the source actually was raspberries. Both industries experienced a substantial loss of trade (Herwaldt et al. 1997; Osterholm 1997). Decisions to impose quarantines can also have significant economic effects, with commerce to, and from, the quarantined area significantly impeded.
The authors in this chapter discuss the history of infectious disease control, the legal powers and limits, and the influence of society, politics, and economics. This chapter begins with the most ancient and enduring response to communicable disease— crude separation of the sick from the healthy.
I. Civil Confinement: Isolation, Quarantine, and Compulsory Hospitalization
Public health authorities possess three overlapping powers of detention: isolation of known infectious persons, quarantine of healthy persons exposed to disease, and civil commitment (compulsory hospitalization) for care and treatment. (See the definitions of these three forms of detention in chapter 8 of the companion text). These powers, in one form or another, have persisted since the origin of human civilization.
A. The History of Quarantine
The prominent Yale historian David F. Musto (1986) offers this description of early attempts to ward off infectious diseases:
In ancient times citizens noted that occasionally a disease that had appeared in a distant locale was then sweeping toward them from neighboring villages, or that after a ship from a foreign land reached shore with ill persons aboard, people residing in the port city would take ill. Such temporal sequences cannot be ignored and, if the illness is a serious one, fears escalate as the illness comes closer. Knowing the cause of an illness or its mode of transmission provides some rational approach to interrupting the spread of the disease. Prior to the nineteenth century, however, those were unknowns, and so civil authorities were left with whatever means seemed reasonable in the wisdom of the time to fight the spread of diseases. Protective measures were based upon what we would now consider erroneous explanations for contagion. From this era of scant knowledge comes the origin of the familiar word we use to designate attempts to isolate the sick or contagious from the healthy. “Quarantine.”For a discussion of the historical origins of the term “quarantine,” see Tandy (1923) and Clemow (1929), reproduced in the Reader website. In the selection below, J. M. Eager describes the ancient practices. The reading is taken from an informative report commissioned by the United States Public Health and Marine-Hospital Service. Many excellent books and articles discuss civil confinement in relation to specific diseases such as tuberculosis (TB) (Rothman 1994), venereal disease (Brandt 1987), and cholera (Rosenberg 1962).
J. M. Eager, "The Early History of Quarantine: Origin of Sanitary
Measures Directed Against Yellow Fever"
Washington, DC, Government Printing Office, 1903
. . .The history of quarantine is closely interwoven with that of medicine in general and of shipping. . . . The story of the beginnings of quarantine is associated particularly with the epidemiology of leprosy, pest, and syphilis. Cholera and yellow fever were later considerations. . . .
Leprosy and Land Quarantines
The first quarantines of which any mention
is made in literature were land quarantines used as a protection against
leprosy. The ancients regarded this disease as of African origin, and Lucretius
states positively that it first came from Egypt. In the Old Testament the
first indications are found of precautions taken against contagious maladies.
Leviticus, Numbers, and the First Book of' Samuel give directions
for the sequestration of lepers, first in the desert, then outside the
camp, and afterwards without the walls of Jerusalem. In these books the
inspection of persons for the detection of leprosy is detailed. Persons
afflicted with skin diseases were directed to present themselves before
the priests. An observation of each case was made, and, according to minutely
described symptoms, isolation of the patients was ordered for a prescribed
The crusaders on their arrival outside the walls of Jerusalem found lazarettoes still in existence, and after taking the city from the Mussulmans sent all contagious maladies to these isolated places. The name Hospital of St. Lazarus was given to the place of sequestration. Returning to Europe, the members of the military expeditions brought back with them not only numerous diseases, but also the word “lazaretto,” as applied to a place for the isolation of the victims of communicable maladies. As a result lazarettoes were built outside the gates of nearly all the principal cities of Europe. Leprosy itself had, however, been introduced into Europe many centuries earlier. It is spoken of as a foreign disease by the earlier Greek and Latin writers. . . .
Lepers were not strictly confined to the leper houses. They were, however, required to wear a special costume, to limit their walks to certain roads, to give warning of their approach by sounding a clapper, and to forbear communicating with healthy persons and drinking from or bathing in any running stream.
Pest and Early Views of Etiology
By the word pest is understood not only bubonic
plague, but the different epidemic diseases, whatever they may have been,
that were formerly included under that term. . . . The word plague as well
as pest was given by ancient medical writers to any epidemic disease that
wrought in extensive destruction of life. . . . Throughout all this extensive
period notions and practices relating to public sanitation were being evolved
in accordance with the prevalent tenets of causation. . . .
[The author discusses the various theories of the etiology of disease ranging from spiritual causes and corruption of the soil or water to the theory of contagion, including the views of Hippocrates, Galen, and Fracastoro].
Maritime quarantine originated in connection with the Levantine trade. Its early history is associated with that of shipping in the Mediterranean, especially with that of the traffic of Venice, Genoa, and Marseille. . . . As has been seen, the practice of isolation was first applied against communicable disease by the Hebrews, but the Lazarettoes, it appears, were little used in connection with foreign trade, leaving out of the question commerce by sea. In the exchange of commodities with foreign countries the Hebrews were largely dependent on the Phoenicians and Arabs. Had the Jews been active in outside commerce, we should probably read in the Old Testament of sanitary laws applicable to caravans and vessels. . . .
Early Maritime Sanitary Laws
The Venetians were, it is generally admitted,
the first to make provision for maritime sanitation. As far back as the
year 1000 there were overseers of public health, but at first the office
was not a permanent one. The incumbents were appointed to serve during
the prevalence of an epidemic only. The first information we have of this
kind of public office is under date of 1348, when Nicolaus Venerio, Marinus
Querino, and Paulus Belegno (their Christian names given in the Latin of
the text) were appointed overseers of public health. These officers were
authorized to spend public money for the purpose of isolating infected
ships, goods, and persons at an island of the lagoon. A medical man was
stationed with the sick. As a later result of these arrangements, the first
thoroughly constituted maritime quarantine station of which there is historical
record was established in 1403 on the island of Santa Maria di Nazareth,
at Venice. . . .
Neighboring States engaged in commerce in the Mediterranean speedily followed the example of Venice. . . . It was not until 1459 that a public bureau of sanitation existed in the Republic of Venice. In that year officers, called conservators of sanitation, were regularly appointed. . . .
During all this period land quarantines were in operation at times of pest. Offenses against quarantine, both land and maritime, were severely punished. Pietro Follerio, a great Neapolitan jurisconsult of the sixteenth century, mentions whipping, the mill, exile, and death as penalties for infringement of sanitary regulations. . . . Torture, long service in the galleys, and work among the sick in a pest hospital are named among the penalties. . . .
Bills of Health
Sanitary bulletins were incident to quarantines
and cordons. They were so called because they were stamped with the “bollo”
or seal of the authority issuing them. When the system of sanitary bulletins
was fully developed these patients, in their connection with ships, were
designated as clean, when beyond suspicion; touched, when from a noninfected
place in active communication with infected places; suspicious, without
sickness aboard, but having received goods from places or from ships or
caravans from places where pest prevailed; and dirty, when from a place
where disease existed.
. . . Prior to 1300 there is a good record in a rubric of the statutes of the city of Urbino, Italy, in which, referring to precautions against pest, it is written that no person shall leave the gate of the city without a proper bulletin, and that, to this end, watch shall be kept day and night at the city gates and walls. During the pest at Naples, in the year 1557, citizens, usually merchants, were stationed at the gates of the city to examine bills of health. Corruption and lack of diligence on the part of these persons were punishable by death. Sentinels, some on foot and some on horseback, made a patrol about the city walls to prevent clandestine entrance. Bills of health to be acceptable had to be stamped with the seal of the university of the place from which the traveler came. They gave not only the day but the hour of departure, together with a description of the traveler. Sanitary bulletins were also issued to accompany merchandise, but in times of severe pest all articles except aromatics and medicaments were considered suspicious. . . .
Further History of Quarantine
Without touching on quarantine in America,
which is another and interesting story, it is profitable to take a view
of the further history of quarantine in Europe. Following the discovery
by Anthony van Leeuwenhoek, in 1675, of bacteria, called by him "animalcules,"
was a wide belief in the casual connection of microscopic creatures with disease, a belief supported by the doctrine of living contagion enunciated by Marcus Antonius Plenciz, of Vienna, in 1762, but it was without marked effect on quarantine procedure. The theory, in fact, lost hold on the public and medical minds to such an extent that in the early part of the nineteenth century the doctrine of a living contagion was looked upon as an absurd assumption. It was not until the middle of the last century, following the investigations of Pasteur, Pollender, and Bavaine, that quarantine practice became established on its modern scientific basis.
[The author discusses quarantine procedure in Europe in the eighteenth century].
The international sanitary conferences at Paris in 1851 and 1852, in which participated the different European powers having interests in the Mediterranean, marked the close of the old regime of quarantine. . . . England was not signatory. [Lax] [r]egulations were adopted . . . , it being admitted that the efficacy of many measures formerly practiced was doubtful or negative, science having proclaimed that, for the most part, pestilential maladies are not contagious. This surprising declaration was followed by a revolution in quarantine methods on the Continent and resulted in the general adoption of practices based on the limited communicability of epidemic diseases. These changes, with which the early history of quarantine closes, were brought into effect at the beginning of the new era, during which the doctrine of specific living causes of epidemic diseases have been built up on the substantial basis of experimental medicine.
B. Judicial Review of Civil Confinement: The Early Cases
As the excerpt by Eager illustrates, the practice
of quarantine pre-dates the founding of the republic and continues to modern
times. For a discussion of quarantine law in the United States see Parmet
(1985) and Merritt (1986). In the early twentieth century, the courts adopted
a permissive approach to quarantine, as the following two state supreme
court decisions illustrate. Both cases reveal stereotypical attitudes based
on gender and race.
Kirk v. Wyman, 65 S.E. 387 (S.C. 1909)
Supreme Court of South Carolina
Decided August 19, 1909.
Judge ALDRICH delivered the opinion of the court.
[The city of Aiken, South Carolina found that
Mary Kirk had contagious leprosy and required her to be isolated in the
city hospital for infectious diseases. Kirk claimed that although she had
leprosy, she was not dangerous to the community. Additionally, she
complained that the hospital where she was to be placed was really a “pesthouse,
coarse and comfortless” and used for “incarcerating negroes having small-pox
and other dangerous infectious diseases.” She further objected to her isolation
because of the odors coming from the city dumping ground near the hospital.
She was granted a temporary injunction. The Board of Health appealed, claiming
that she was a danger to community, that they had sought measures to improve
the hospital and would eventually provide a private cottage for her, and
that the city dump was located nearby but did not contain foul deposits.]
Municipal boards of health . . . are to be considered as deriving their authority to isolate infected persons from . . . from section 1099 of the Civil Code, which provides:
The said board of health shall have power and it shall be their duty to make and enforce all needful rules and regulations to prevent the introduction and spread of infectious or contagious diseases by the regulation of intercourse with infected places, by the arrest, separation, and treatment of infected persons, and persons who shall have been exposed to any contagious or infectious diseases, . . . They shall also have power, with the consent of the town or city council, in case of the prevalence of any contagious or infectious diseases within the town or city, to establish one or more hospitals and to make provisions and regulations for the management of the same. . . .The principles of constitutional law governing health regulations by statute and municipal ordinance may be thus stated:
Ex parte Company, 139 N.E. 204 (Ohio 1922)
Supreme Court of Ohio
Decided December 5, 1922.
Judge CLARK delivered the opinion of the court.
[Defendants Martha Company and Irene Irvin
were arrested, on separate occasions, on the charge of violating §
13031-13 of the Ohio General Code (including prostitution, lewdness and
assignation). While in custody, both were found to have sexually transmitted
diseases (syphilis and gonorrhea). The commissioner of health of
the city of Akron confined them in their detention home under a quarantine
for approximately two months (the time necessary to render each noninfectious
through treatment). The defendants filed writs of habeas corpus to
protest that their detention violated their constitutional right to due
process. Refusing the writs, the Supreme Court of Ohio upheld the
state statute permitting the detention of the defendants as a legitimate
exercise of the state’s police powers.]
Regulation 2 of the Sanitary Code . . . named, classified, and declared dangerous to the public health certain diseases and disabilities, and included in class 'B,' of such designated diseases, those known as chancroid, gonorrhea, and syphilis. Regulation 18 of the Sanitary Code declares such diseases to be contagious, infectious, communicable, and dangerous to the public health. Regulation 23 empowers the health commissioner of each city to make examination of persons reasonably suspected of having a venereal disease. All known prostitutes and persons associating with them shall be considered as reasonably suspected of having a venereal disease. Regulation 24 provides that the health commissioner may quarantine any person who has, or is reasonably suspected of having, a venereal disease, whenever in his opinion quarantine is necessary for the protection of the public health. . . .
The right of the state through the exercise of its police power to subject persons and property to reasonable and proper restraints in order to secure the general comfort, health, and prosperity of the state is no longer open to question. In the American constitutional system the power to establish the necessary police regulations has been left with the several states. . . . The regulations here under consideration, if otherwise lawful, are not in conflict with any provision of the federal or state Constitutions.
It is urged that the Sanitary Code, and the particular regulations in question, are in opposition to and violative of subsection c of § 13031-17 [which states]. . . as follows:
Any person charged with a violation of § 13031-13 of the General Code, shall, upon the order of the court having jurisdiction of such case, be subjected to examination to determine if such person is infected with a venereal disease. . . . No person charged with a violation of § 13031-13 of the General Code shall be discharged from custody, paroled or placed on probation if he or she has a venereal disease in an infective stage unless the court having jurisdiction shall be assured that such person will continue medical treatment until cured or rendered noninfectious.In the cases here considered it is to be observed that both of the petitioners were charged with violations of § 13031-13. Regulation 24 provides that such infected persons shall be subject to quarantine. The statutory provision is that such infected persons shall not be discharged from custody, paroled, or placed on probation. No inconsistency is found as between the regulations complained of and the provisions of subsection c of § 13031-17. In either event quarantine is established. Quarantine in the sense herein used means detention to the point of preserving the infected person from contact with others. The power to so quarantine in proper case and reasonable way is not open to question. It is exercised by the state and the subdivisions of the state daily. The protection of the health and lives of the public is paramount, and those who by conduct and association contract such disease as makes them a menace to the health and morals of the community must submit to such regulation as will protect the public. . . .
* * *
The Ohio Supreme Court did not appear unduly
concerned with whether Martha Company actually had a venereal disease.
It upheld a quarantine regulation that “all known prostitutes and people
associated with them shall be considered as reasonably suspected of having
a venereal disease.” “Suspect conduct and association” were deemed
sufficient to justify imposing control measures. An Illinois court accepted
similarly unfounded assumptions: “suspected” prostitutes were considered
“natural subjects and carriers of venereal disease,” making it “logical
and natural that suspicion be cast upon them.” People ex rel. Baker v.
Strautz, 54 N.E.2d 441, 444 (Ill. 1944).
C. Judicial Review of Civil Confinement: Modern Standards
Although modern public health authorities exercise compulsory powers much less frequently, they sometimes still detain persons with infectious disease. The Gillis W. Long Hansen’s Disease Center, called the “Louisiana Leper Home” or “Carville,” closed as recently as 1998. The Center was used as a place of residence and treatment of persons with leprosy (Jauhar 1998). Additionally, many states still maintain places for the treatment of TB (Gasner et al 1999; Oscherwitz et al. 1997). Edward W. Campion (1999), an editor of the New England Journal of Medicine, comments on the use of legal action, including mandatory detention, in New York City to control multi-drug resistant tuberculosis (MDR-TB):
To be effective, TB-control programs must be able to get nearly every patient to complete the full course of antituberculosis-drug therapy, but full compliance with a multidrug regimen lasting for months is notoriously difficult. Even with directly controlled therapy, which is now used widely, patients sometimes stop cooperating or just disappear. In response to the resurgence of TB in New York City, the commissioner of health was given added powers, including the power to detain patients, not only while they were infectious but also, if necessary, until they completed a full course of treatment. Sending patients to a locked facility for treatment is an extreme measure, and the threat to civil liberties is particularly serious since most of the patients likely to receive such orders are impoverished and powerless. . . .How would the modern courts review public health practices such as the detention of persons with TB? The judiciary uses a heightened standard of review, but still almost invariably upholds the exercise of public health powers. The Supreme Court in an analogous context, held that civil commitment of the mentally ill constitutes a “massive curtailment of liberty.” Vitek v. Jones, 445 U.S. 480, 491 (1980). To justify confinement the courts probably would require the state to demonstrate a substantial interest in preventing the spread of disease; a well-targeted intervention that was not over-inclusive; and that loss of liberty was the least restrictive alternative.
Over a period of two years there were more than 8000 patients with active TB, and legal orders to complete treatment were issued to only about 4 percent. Most of those patients had alcoholism or used illicit drugs. Many had histories of homelessness or imprisonment, and most had left hospitals against medical advice in the past. More than half the orders issued were simply for directly observed therapy in the community. But 139 people were detained for treatment of TB, and most of these patients were kept on the secure ward of a hospital for about six months. The special ward has exercise and recreation facilities and is not a prison, but patients are forced to live there, away from their neighborhoods and families. As one of these patients described it, a major hardship of mandatory confinement is “being bored like an oyster.”
City of New York v. Antoinette R., 630 N.Y.S.2d 1008 (1995)
Supreme Court, Queens County
Decided April 21, 1995.
Judge McGANN delivered the opinion of the court.
[The city health commissioner sought enforcement
of order requiring forcible detention in a hospital setting of a person
(Antoinette R.) with active, infectious TB. The purpose of the detention
was to allow for completion of appropriate regime of medical treatment.
The court found in favor of detention despite evidence regarding Antoinette’s
recent cooperation in adhering to voluntary treatment regime].
Due to a resurgence of TB, New York City recently revised the Health Code to permit the detention of individuals infected with TB who have demonstrated an inability to voluntarily comply with appropriate medical treatment. Thus, effective April 29, 1993, New York City Health Code § 11.47 was amended to give the Commissioner of Health the authority to issue an order for the removal or detention in a hospital or other treatment facility of a person who has active TB. The prerequisite for an order is that there is a substantial likelihood, based on the person's past or present behavior, that the individual cannot be relied upon to participate in or complete an appropriate prescribed course of medication or, if necessary, follow required contagion precautions for TB. Such behavior may include the refusal or failure to take medication or to complete treatment for tuberculosis, to keep appointments for the treatment of TB, or a disregard for contagion precautions.
The statute provides certain due process safeguards when detention is ordered. For example, there are requirements for an appraisal of the risk posed to others and a review of less restrictive alternatives which were attempted or considered. Furthermore, there must be a court review within five days at the patient's request, and court review within sixty days and at ninety-day intervals thereafter. The detainee also has the right to counsel, to have counsel provided, and to have friends or relatives notified. . . .
When [TB] initially becomes active, it is often highly infectious, that is, capable of being transmitted to others. A person with infectious TB can normally be rendered non-infectious within days to weeks. Thereafter, the individual must continue to take a full course of medication, generally for six to nine months, to cure the active TB. If a patient stops taking the appropriate medication before the expiration of these six to nine months, however, that patient will likely become infectious again. Moreover, when the medical regime is interrupted, and the TB resurges in an infectious state, the organisms in the individual's system may eventually mutate and become resistant to the original drugs prescribed. The more times medication is suspended, the more likely is the chance of developing a strain of TB which is resistant to drugs.
These multi-drug resistant [(MDR)] strains of TB stay infectious and active over longer periods of time and therefore require long-term treatment with more toxic drugs. By comparison, the standard treatment for non-resistant TB consists of administering two drugs, isoniazid and rifampin, for approximately six months until the patient is cured. The cure rate for those completing this treatment is considered 100%. MDR-TB, on the other hand, is resistant to these drugs and to as many as seven other antibiotics. To obtain a cure rate of 60% or less, toxic drugs must be maintained over a minimum period of eighteen to twenty-four months. . . . The most critical characteristic of these MDR strains is that they are capable of being transmitted directly to others during the infectious stage. . . .
The Board recognized that the failure of a TB patient to complete an effective course of therapy creates the likelihood of relapse and facilitates development of drug resistant strains of the disease. The Board therefore decreed that the refusal or failure of TB patients, whether or not infectious, to complete a course of anti-TB therapy creates a significant threat to the public health. Accordingly, the New York City Health Code was amended to allow the Commissioner to issue orders of detention [through] . . . an application to the court for enforcement . . . [based on] clear and convincing evidence [of] the particularized circumstances constituting the necessity for the detention. . . .
The [Commissioner’s] request for enforcement of the order . . . is granted. The [Commissioner] has demonstrated through clear and convincing evidence the respondent's inability to comply with a prescribed course of medication in a less restrictive environment. . . . [Antoinette R.] has repeatedly sought medical treatment for the infectious stages of the disease and has consistently withdrawn from medical treatment once symptoms abate. She has also exhibited a pattern of behavior which is consistent with one who does not understand the full import of her condition nor the risks she poses to others, both the public and her family. On the contrary, she has repeatedly tried to hide the history of her condition from medical personnel. Although the court is sympathetic to the fact that she has recently undergone an epiphany of sorts, there is nothing in the record which would indicate that once she leaves the controlled setting of the hospital she would have the self-discipline to continue her cooperation. Moreover, her past behavior and lack of compliance with outpatient treatment when her listed residence was her mother's house, makes it all the more difficult to have confidence that her mother's good intentions will prevail over the respondent's inclinations to avoid treatments. In any event, the court will reevaluate the progress of the respondent's ability to cooperate in a less restrictive setting during its next review of the order in ninety days.
Accordingly, [Antoinette R.] shall continue to be detained in a hospital setting until [she] . . . has completed an appropriate course of medication for TB, or a change in circumstances indicates that the respondent can be relied upon to complete the prescribed course of medication without being in detention. . . .
* * *
During the first decades of the HIV/AIDS epidemic,
commentators urged public health authorities to employ their powers of
detention. See, e.g., Buckley (1986); Grutsch & Robertson (1986). At
least two forms of detention could have been used: status-based,
applying to all persons with HIV infection or AIDS and behavior-based,
applying only to persons with HIV/AIDS who engage in specified high-risk
behaviors. A status-based program would have been highly impractical, potentially
affecting hundreds of thousands of Americans. A behavior-based program
would have granted public health authorities wide discretion, enabling
them to target vulnerable groups such as gay men or commercial sex workers.
What are the principal arguments, for and against, isolation of persons
living with HIV/AIDS? For a discussion, see Bayer and Fairchild-Carrino
(1993); Sullivan and Field (1988); Gostin (1989).
II. The Criminal Law: Knowing or Willful Exposure to Infection
Jennifer Frey, "Nushawn’s Girls"
Washington Post, June 1, 1999, at C2
It has been two years since Andrea last gave
herself to Nushawn Williams. She has traded the drugs and the parties and
the jail cells for a room in her mother's middle-class house. Her belly
is eight months swollen. . .
Andrea—who asked that her last name not be revealed—is 19 now, and she has a new boyfriend named Angel, and they are thrilled to have a baby on the way. She is happy, after a lifetime of unhappiness. And she is furious. Furious at [Nushawn] Williams, the man who infected her—and 12 other young women in rural Chautauqua County [New York]—with HIV, the virus that causes AIDS. Furious that he received only a 4-to-12-year sentence for his actions. Furious at herself for taking the risks she took with a drug dealer from Brooklyn, a man she never even loved. "If I could take back one moment in my life," she says, "it would be the moment I laid eyes on him.". . .
[Andrea] became one of "Nushawn's girls," as
the young women now are commonly known here. Nushawn's girls: Four have
had babies, two more—including Andrea—are pregnant, and none are sick yet,
unless you count the sickness that is regret. The youngest was 13 when
she met Williams, the oldest in her mid-twenties. Andrea was 17. He wooed
her the way he wooed many of the others: He bought her nice presents. He
told her she had pretty eyes. He took her to parties. He let her move in.
He also treated her like a possession, according to Andrea, slapping her around if she so much as went to the store for a soda without his permission. Andrea says, "I hated having sex with him." She says he had sex with other women while she was with him. Still, she stayed for a while. Because it was exciting. Because he made her feel special, if only for a moment.
"There are Nushawns in every city waiting for girls like Andrea," says her mother, Wendy. "This is about frustrated lives festering with all sorts of problems. Once you are hopeless, and have no more dreams, then you don't give a damn about what you do to yourself. You live for the moment." . . .
When the Williams story made national, news in October 1997, it became, as one AIDS educator described it, "a teachable moment." What happened here was supposed to serve as proof that AIDS can happen to anyone, anywhere. . . .
This, then, is a story not just about Jamestown [in Chautauqua County] but about the legacy of AIDS. What Jamestown can show is that—no matter the place, no matter the people—AIDS still brings denial, displacement and blame.
It was Oct. 27, 1997, when Richard Berke, the county health commissioner, held a news conference to announce to the world that Chautauqua County had been home to a one-man HIV epidemic named Nushawn Williams. In this county of 141,000, there had been just 60 reported cases of full-blown AIDS since 1981. So when several teenage girls popped up HIV-positive in a short period of time, the health department took notice.
It took a while to trace them back to Williams. He used so many aliases—Face, Shyteek, Headteck, Shoe—that it wasn't until Berke got to the sixth girl that he realized the connection. It's a connection he probably couldn't have made if Chautauqua were a bigger county, with more clinics and more HIV cases and more counselors. It's a place where Berke didn't have to walk more than few hundred yards to talk to the judge who let him publicly reveal Williams's HIV status by deeming Williams a “public health risk.”
So Berke held his news conference. Officials papered the county with posters bearing Williams's likeness and the message “Health Alert.” And chaos hit. . . .More than 1,400 individuals-many of them teenagers-flocked to local clinics for testing. . . .
Williams had identified 48 sexual partners to Chautauqua County health officials. Of those 48, 41 were eventually tested. Thirteen turned up positive—seven infected by Williams before he knew his own HIV status, according to Berke, and the other six afterward. One man also is believed to have been infected by one of those women. And one baby, thus far, has been born with HIV. . . .
The information about [Nushawn’s girls] is sketchy. . . . “They probably fit the profile of the people we've been having trouble reaching all along,” Berke says. “Because of the chaos in their own lives—kids who are up all night, alcohol, abuse, all kinds of situations—the message may not be making it. Or the message may be making it, but it's not all that relevant to their life.” . . .
Then there are the babies. Four born, two on the way. [O]ne who has tested HIV-
positive. . .
It's not so amazing to Heather Watts, a medical officer at the National Institutes of Health who specializes in pediatric and maternal AIDS and has treated numerous pregnant women who are HIV-positive. Watts says that the average rate of infection from mother to child is 25 percent, but that it can be reduced to 5 to 8 percent with proper drug treatments, and in cases like Andrea's, where the mother has a low level of the virus in her blood, it can be as low as
"Many make informed decisions," Watts says. "I think it's analogous to genetic diseases before we had the more sophisticated tests. It's a powerful pull, the desire to procreate. People take risks."
Ask Andrea why she wants a child and she says, "In case I get sick." Ask her to
elaborate and she says, "You know, so I have something to leave behind." Mostly though, Andrea refuses to talk about the possibility of getting full-blown AIDS.
Her denial is not uncommon. Two of the other young women have stopped taking their medication. One cut off contact with her doctors after she had a baby, and the baby tested negative . . . .
There were a few concrete changes that came out of what happened here. Youth outreach Programs were formed and a daylong teen summit held, and there are plans for a teen center. People no longer go through the back basement door to get to AIDS Community Services in the old mansion at Fifth and Main streets. AIDS is no longer a secret here. But it's still a curse. . . .
Much energy has been directed toward passing laws that will make it easier to punish the Nushawn Williamses of the world (Williams pleaded guilty to one count of statutory rape and one count of reckless endangerment). . . .
This is the legacy of AIDS: People may say, “AIDS can happen to anyone," but deep inside they're still thinking, “It can't happen to me." There's always a way to make it about someone else. Gays. Drug users. People who hang out with gays and drug users. Blacks and Hispanics in big-city ghettos. White trash. . . .
* * *
There is a powerful appeal in using the criminal
law to prosecute individuals who knowingly or willfully risk transmission
of an infectious disease. The public views individuals who engage in this
behavior as morally blameworthy and supports criminal sanctions for aberrant
and irresponsible conduct. The criminal law deters risk behavior and sets
a clear standard for behaviors that society will not tolerate.
The criminal law is backward-looking, concerned with punishing individuals for dangerous acts that have already occurred. Civil confinement, on the other hand, is forward-looking, concerned with avoiding risk behavior that may occur in the future. Many scholars believe that the criminal law is clearer and more objective than civil detention. Whereas civil confinement often uses broad standards, such as “dangerousness,” the criminal law must specify the behavior that is prohibited. Whereas “dangerousness” need only be proved by clear and convincing evidence, each element of a crime must be proved beyond a reasonable doubt. Whereas the period of civil confinement is indefinite, the period of criminal confinement is usually finite and proportionate to the gravity of the offense.
There are two kinds of charges that can be filed against persons who risk transmission of an infectious disease: traditional crimes of violence and public health offences. This section discusses each of these aspects of the criminal law and concludes with a critique, arguing that criminal prosecutions often can be both unfair and ineffective as a public health intervention.
A. Traditional Crimes of Violence
The traditional crimes of violence that can
be read to apply to the transmission of an infectious disease are homicide
(actual and attempted) and assault. Murder prosecutions resulting from
transmission of an infectious disease are very rare because they require
the death of the victim. Infectious diseases often do not result in death
and, if they do, the length of time from infection to death usually precludes
prosecution. Additionally, homicide requires proof of causation and it
may be difficult to demonstrate that the person contracted the infection
from the defendant.
Prosecutions for attempted murder also should be rare and difficult to prove. As Professors Kathleen Sullivan and Martha Field (1988) observe, “having sex or sharing needles is a highly indirect modus operandi for the person whose purpose is to kill.” Nevertheless, attempted homicide charges have been brought for a broad range of conduct.
The criminal law uses a subjective standard for criminal attempts so that if the facts are as the person believes them to be, it is an offense. This is important in the infectious disease context because a person could be convicted of attempted murder if his intent is to kill, regardless of whether the method used poses a significant risk of transmission. Under this theory, the Indiana Court of Appeals upheld the conviction for attempted murder of a person with HIV for splattering emergency workers with his blood. See State v. Haines below. Other courts have upheld convictions for attempted murder for other low risks such as biting and spitting. See, e.g., State v. Smith, 621 A.2d 493 (N.J. Super. Ct. 1993); Weeks v. State, 834 S.W.2d 559 (Tx. Ct. App. 1992).
A simple assault is a purposeful, knowing, or reckless causing of bodily injury. Defendants with infectious diseases who engage in harmful behavior, such as biting or throwing body fluids have been convicted of assault instead of attempted murder. The crime becomes aggravated assault if the person causes a “serious” bodily injury or uses a “deadly weapon.” In United States v. Sturgis, excerpted below, a federal court of appeals upholds the conviction of an inmate for aggravated assault, holding that teeth, under certain circumstances, can constitute a deadly weapon. See also United States v. Moore, 846 F.2d 1163 (8th Cir. 1988).
State v. Haines, 545 N.E.2d 834 (Ind. Ct. App. 1989)
Indiana Court of Appeals
Decided October 31, 1989.
Judge BUCHANAN delivered the opinion of the court.
On August 6, 1987, in Lafayette, Indiana, two
police officers went to Haines’ apartment in response to a possible suicide.
The officers found Haines face down in blood, unconscious, with both writs
slashed and bleeding. Haines then stood and ran towards one officer, Dennis,
screaming that he should be left to die because he had AIDS. The police
officers tried to subdue him, but Haines continued to fight and stated
he would “give it to him” and “use his wounds” as he jerked his arms, causing
blood to go into the officers mouth and eyes. He repeatedly yelled
that he had AIDS and could not deal with it and would make Dennis deal
Haines also struggled with emergency medical technicians, threatening to infect them with AIDS and continued to spit, bite, scratch and grab the personnel until several were bleeding from scratches and scrapes on their arms and hands. Upon arrival to the hospital, Haines was still kicking, screaming, throwing blood and spitting and again announced he had AIDS and was going to show everyone else what it was like to have the disease and die, again biting a personnel.
Haines’ homosexual [partner] recalled that a doctor had informed Haines that he had the virus, and Haines told him he knew it was a fatal disease and at the time warned medical staff not to touch him because he was diseased.
Haines was charged with three counts of attempted murder. At trial, medical experts testified that the virus could be transmitted through blood, tears, and saliva. They also observed that policemen, firemen, and other emergency personnel are generally at risk when they are exposed to body products. One medical expert observed that Dennis was definitely exposed to the HIV virus and others acknowledged that exposure of infected blood to the eyes and the mouth is dangerous, and that it is easier for the virus to enter the blood stream if there is a cut in the skin. . . .
[The State of Indiana appeals from the trial court's grant of Haines’ motion for judgment on the evidence, claiming that the trial judge erred in vacating the jury's verdicts of three counts of attempted murder and entering judgments of conviction as to three counts of battery, a class D felony. The State also alleges that the trial court erred in excluding the testimony of two physicians].
The only issue before us is whether the trial court erred in granting Haines' motion for judgment on the evidence vacating the three counts of attempted murder. . . . When the trial judge sentenced Haines on February 2, 1988, he made this statement:
“I believe my decision in this case was made easier by the State's decision to not introduce any medical expert scientific evidence. . . .Record at 699-703 (emphasis supplied). . . .
The State believed that the disease known as AIDS was irrelevant to its burden of proof; that only the intent or state of mind of the defendant was relevant. I disagree with that. All of us know that the conduct of spitting, throwing blood and biting cannot under normal circumstances constitute a step, substantial or otherwise, in causing the death of another person, regardless of the intent of the defendant. More has to be shown, more has to be proven, in my judgment. And the more in this case was that the conduct had to be coupled with a disease, a disease which by definition is inextricably based in science and medicine. . . .
[I]n this case, the State took the position that everyone has heard of AIDS; that everybody has read about the disease of AIDS; and that everyone knows that this disease can be lethal or that it is lethal; that AIDS, if you will, is as common a killer as a gun or a knife, which by their very nature are deadly weapons.
All of the medical evidence . . . shows conclusively that this medical condition and what it means is not very clear. And this is especially true when the [u]ncontroverted evidence in this case was that the defendant did not, in fact, have what the doctors consider a AIDS [sic]; but, having instead, as set out in the charges that were filed in this case, an AIDS Related Complex, which is a preliminary stage of the disease of AIDS. . . . There was no medical expert evidence that the person with ARC or AIDS can kill another by transmitting bodily fluids as alleged in this case. And there was no medical evidence from any of the evidence that the defendant had any reason to believe that he could transmit his condition to others by transmitting bodily fluids as are alleged in this case. . . . I find that the State failed in its burden of establishing that the defendant had a medical disease of ARC as alleged, that ARC can lead to AIDS, that AIDS or ARC is a disease that can be or is lethal and that spitting, biting or throwing blood at the victims is a method of transmitting AIDS or ARC. . . ."
* * *
State v. Haines is a difficult and troubling
case. The jury returned a verdict of attempted murder in under 60 minutes,
viewing Mr. Haines as morally blameworthy. Another way to see this case
is that Mr. Haines was making a “cry for help.” He had just attempted suicide
and was in despair over the diagnosis of AIDS, which at the time was an
invariably fatal disease. Mr. Haines asked the emergency workers to leave
him alone and let him “die from AIDS.” His behavior, while highly concerning,
was unlikely to have transmitted the infection. In these circumstances,
did Mr. Haines deserve criminal punishment and would use of the criminal
law in these kinds of cases deter others from risk behavior?
United States v. Sturgis, 48 F.3d 784 (4th Cir. 1995)
Fourth Circuit Court of Appeals
Decided February 21, 1995.
Judge WILKINSON delivered the opinion of the court.
Jeffrey Wayne Sturgis appeals his conviction for
assault with a dangerous weapon, 18 U.S.C. § 113(c) . . . . Sturgis,
who is HIV positive, bit two correctional officers who were attempting
to restrain him during an altercation at the Lorton Reformatory. We conclude
that the evidence was sufficient to establish Sturgis' intent to harm the
correctional officers. The question of whether Sturgis' teeth qualified
as a dangerous weapon was also one of fact for the jury. Here the jury
could reasonably have concluded that Sturgis used his mouth and teeth as
a "dangerous weapon" during the incident. Accordingly, we affirm Sturgis'
On July 15, 1993, Jeffrey Wayne Sturgis went to Lorton Reformatory in Virginia to visit an inmate and upon entering was required to . . . submit to a search of his person and belongings . . . . During the search, one officer discovered a foreign object in Sturgis’ pants. Upon questioning, Sturgis declared he wanted to end the search and forego the visit. He then took the object from his pants and placed it in his mouth. Suspicious that Sturgis had contraband, one officer tried to force his jaws open to retrieve the object. Sturgis began to struggle and finally spit out the object (pink bubble gum) and as the officer tried to retrieve the object Sturgis attacked him by biting him on the thumb, causing bleeding. As the struggle escalated, more officers tried to help restrain Sturgis, who was kicking and flailing and eventually bit another officer on the arm with substantial bleeding. Once subdued, Sturgis was then transferred to DeWitt Army Hospital for treatment and observation (for fear that he had actually swallowed narcotics).
While at the hospital, Sturgis continued to be combative by struggling, shouting, biting, spitting and threatening the medical personnel trying to treat him. He was told to stop because he was HIV positive but he stated he knew of his condition and was trying to infect the staff.
Sturgis' stomach was pumped at the hospital. Although no foreign objects were found, a drug screen revealed traces of cocaine and marijuana in his bloodstream. A blood test performed at DeWitt Army Hospital also confirmed Sturgis' HIV positive status. . . .
At Sturgis' trial, the government presented medical records compiled while Sturgis was an inmate at Lorton. Those records contained eight references to Sturgis' HIV positive status and indicated that he had been informed of that status in 1991. The United States also offered expert testimony to establish that HIV, which is found in human saliva, can be transmitted through a bite. . . .
Sturgis . . . insisted that he was unaware of his HIV positive status until counsel informed him of the results of the test taken at DeWitt Army Hospital in July of 1993. . . .
Conviction for assault with a dangerous weapon under 18 U.S.C. § 113(c) requires proof of (1) an assault, (2) with a dangerous weapon, (3) with intent to do bodily harm. . . .
Sturgis claims that the evidence fails to establish that he acted with the requisite intent to do bodily harm to the correctional officers. Rather, he maintains that he acted wholly in self-defense. . . . [T]he evidence amply establishes Sturgis' intent to inflict harm. The record demonstrates that Sturgis acted in a violent and aggressive manner throughout the confrontation with the correctional officers and continued to kick, scream, and thrash about even after being taken to DeWitt Army Hospital. . . . Moreover, Sturgis' own statements, specifically his threats against the medical personnel who treated him, indicate that he was aware he was infected with HIV and wanted to infect others. Finally, evidence that Sturgis held each of the bites on the correctional officers for several seconds indicates intent to inflict serious bodily harm, not merely to defend himself from attack.
We next address whether Sturgis' use of his teeth to bite the correctional officers amounted to use of a "dangerous weapon." . . . [W]hat constitutes a dangerous weapon depends not on the object's intrinsic character but on its capacity, given "the manner of its use," to endanger life or inflict serious physical harm. United States v. Johnson, 324 F.2d 264, 266 (4th Cir.1963). In United States v. Moore, 846 F.2d 1163 (8th Cir.1988), the Eighth Circuit reached a similar conclusion: "Almost any weapon, as used or attempted to be used, may endanger life or inflict great bodily harm; as such, in appropriate circumstances, it may be a dangerous and deadly weapon." Id. at 1166. Thus an object need not be inherently dangerous to be a dangerous weapon. Rather, innocuous objects or instruments may become capable of inflicting serious injury when put to assaultive use. . . .
[T]eeth may also be a dangerous weapon if they are employed as such. . . . Parts of the human body have been held dangerous weapons under circumstances in which the body part was employed to inflict death or serious physical injury. . . . Here a jury could reasonably have concluded that Sturgis' use of his teeth to inflict potentially lethal bite wounds amounted to use of a dangerous weapon. . . .
Finally, there is at least a substantial possibility that HIV, which causes AIDS, can be transmitted via a human bite. . . . Sturgis' attack may not only have inflicted serious injury on the officers but endangered their lives as well.
In sum, the jury could have found that the wounds inflicted by Sturgis' teeth were in essence indistinguishable from punctures caused by a knife or an ice pick. The assertion that human teeth can never qualify as a dangerous weapon ignores the harm to those on whom these bites were inflicted. . . . For the foregoing reasons, Sturgis' conviction and sentence are affirmed.
* * *
Certainly, persons who engage in assaultive
behavior deserve criminal punishment. However, should individuals
be convicted of more serious offenses (e.g., assault with a deadly weapon)
because of their infectious state? From a public health perspective
the answer may be “no” because prevention of negligible risks would be
a low priority. From a criminal justice perspective, are persons with infectious
disease more culpable if they engage in assaultive behavior knowing there
is a small possibility of transmitting the infection?
B. Public Health Offenses
Despite the spate of prosecutions for traditional
crimes of violence, the mental elements of “purpose” or “knowledge” can
be difficult to prove. Partly in frustration with the difficulty of proof,
and partly in response to political pressure, legislatures have sought
other avenues to criminalize the risk of transmission. Infectious disease
statutes create public health offenses that vary from state to state. A
few states have broad provisions that criminally punish behavior that risks
transmission of any contagious disease. Most statutes, however, create
“disease-specific” offenses that were often enacted in waves in response
to public misapprehensions about epidemics of the day. In the early twentieth
century states enacted statutes directed to TB, followed by STDs, and,
in the latter part of the century, HIV/AIDS.
Public health offenses can differ depending on the state, but they often contain the following elements: (i) knowledge of an infectious condition (e.g., the person tests positive for an STD or HIV); (ii) behavior risking transmission of the infection (e.g., sexual intercourse or sharing drug injection equipment); and (iii) failure to disclose the risk to partners or contacts. While most STD and TB statutes have mild sanctions, many HIV statutes are highly punitive. Courts have upheld the constitutionality of HIV-specific statutes against challenges based on vagueness, overbreadth, and the absence of a mens rea or specific intent requirement, as the following case illustrates.
Public health offenses can have advantages over traditional crimes of violence, making them much easier to prosecute. If narrowly written, they can be more precise than the traditional criminal law: individuals are forewarned of the prohibited behaviors and prosecutors are vested with less discretion. Society may also value public health offenses because they declare a public interest in responsible behavior and encourage disclosure to persons at risk of infection. Despite these benefits, are public health offenses useful prevention strategies? Are they likely to deter high risk behavior? Alternatively, is it possible that they may create the wrong incentive? Consider the possibility that persons at risk may be better off not knowing their serologic status because only those who are aware of their status can be prosecuted. Additionally, by creating a specific offense legislatures implicitly invite the interest of police, prosecutors, and the apparatus of the criminal justice system. Does this create a problem of potentially intrusive surveillance and selective enforcement?
Whether society should resort to the criminal law when a person risks transmission of an infectious disease depends on the severity of the case prosecuted. Think about the preferred public policy response to the following four scenarios involving persons with infectious conditions. In Case 1, the person truly intends to kill and uses a means reasonably calculated to achieve that end (e.g., a father who injects his son with a contaminated needle to avoid paying child support). In Case 2, the person acts with reckless disregard for life such as the person in Chautauqua County who hid his HIV status from multiple sexual partners. In Case 3, the person engages in epidemiologically low risks such as biting, spiting, or donating blood. Finally, in Case 4, the person engages in epidemiologically higher risks, but the behavior is common among the population (e.g., failure to inform a sexual partner of the risk of infection). In discussing these scenarios, inquire whether prosecution would achieve its traditional goals: deterrence, retribution, incapacitation, and rehabilitation.
* * *
In the previous two chapters, we thought about interventions to control infectious disease—biological approaches and deprivations of liberty. The final chapters of this Reader explore the major challenges facing the field of public health this century, as well as provide case studies for important problems facing our society—emerging infectious diseases, bioterrorism, and public health genetics.