South Africa has arrested the first person who could potentially be charged with attempted murder for failing to heed quarantine orders and exposing others to the new coronavirus. It’s a dangerous precedent for all of us.

Recently, a 52-year-old salon owner in Ladysmith, KwaZulu-Natal, was charged with attempted murder for intentionally spreading the coronavirus after he exposed 27 people to the virus following his refusal to quarantine himself after testing positive. Police arrested the man, who was taken to hospital for treatment while under detention.

If convicted, he could face 10 years or more in jail.

For many, this sounds like a great way to curb the spread of the new virus, known as SARS-Cov-2, that threatens to overwhelm our health system.

But South Africa’s experience with trying to prosecute the transmission of HIV shows that measures like this can have unintended consequences. This type of prosecution can actually do more harm than good when it comes to stemming epidemics by stigmatising infected people and making people too scared to be tested.

To convict someone of attempted murder for spreading a virus, the prosecutors must prove three things.

1. The accused needs to have a disease that can be transmitted or spread to others and be aware that they have it;
2. The accused must have engaged in behaviour that puts people at risk of being infected and accepts that their actions are putting people at risk of contracting the virus; and
3. The virus or disease needs to shorten a person’s lifespan.

In 2005, South African law on disease transmission was cemented — some argue for the worse — when the Pretoria High Court convicted a man, known in court papers as Mr Nyalangu, for attempted murder after he intentionally infected a woman with HIV.

At the time, HIV treatment was not accessible to most South Africans and the virus was effectively a death sentence for many people.

But by 2013, when the country convicted a second man for the same crime, South Africa had more than 100,000 people in treatment. In some communities with access to antiretrovirals, life expectancy had even begun to rise, suggested 2013 research published in the journal Science. Despite this, the courts still found infecting someone with HIV tantamount to attempted murder.

Both these convictions hinged on the fact that the courts could prove that the men were aware of their HIV-positive status — the first requirement for successful prosecution. And because of this, doctors and activists feared that people would stop being tested.

After all, if people didn’t know their status, the courts couldn’t convict them.

But people who don’t know their HIV status also can’t get treated. They also can’t take measures to protect themselves and others.

In 2018, 20 leading international HIV scientists — including many from South Africa — released a statement saying that laws criminalising HIV were not in the interest of public health and many were also not backed by science. They noted that legislation such as this also contributed to stigma by discriminating against HIV-positive persons, something that is unconstitutional in South Africa.

The role of testing in the prevention of Covid-19 is even more critical because there are no treatments. In criminalising the spread of the new coronavirus, South Africa runs the risk of repeating past mistakes that may only deter people from getting tested for SARS-Cov-2 in order to avoid potential prosecution. The use of such laws during the outbreak may also compound the socioeconomic and gendered vulnerabilities faced by many in our country.

Criminalising the coronavirus outbreak risks criminalising poverty

To secure a conviction for spreading a disease, the South African courts must find that someone engaged in behaviour that could spread a disease.

HIV is transmitted in a limited number of ways, through the exchange of bodily fluids as part of — for instance — sex, sharing syringes or blood transfusions.

In contrast, from what we know presently, the SARS-Cov-2 passes from person to person via droplets of saliva released when an infected person sneezes or coughs.

Consequently, any interaction with an infected person risks passing the virus on to others. In the case of the Ladysmith salon owner, police have focused on his interactions with people during his work and a religious gathering that he attended, exposing others.

It is not difficult to see how poorer communities might find themselves on the wrong side of the law more easily than the wealthy.

While the wealthy typically have private homes and an excess of space, poor South Africans, particularly in urban communities, have no such luxury. Instead, they often find themselves in overcrowded homes with limited access to the water and sanitation needed to practise some of the best defences against the new coronavirus — physical distancing and frequent handwashing.

In a situation where someone is diagnosed with SARS-Cov-2 and has no choice but to stay in a small informal settlement with many other people, they could find themselves subject to the same punishment as the Ladysmith business owner who voluntarily went to church.

To secure a conviction, the courts must also find that the virus in question negatively impacts on someone’s lifespan. Again, this is more complicated to show with the new coronavirus than HIV.

SARS-Cov-2 may be at its deadliest among people who are older or with underlying illness, according to data from more than 72,000 cases released in February by the Chinese Centres for Disease Control. Thus, the courts may have difficulty finding, for instance, that the new coronavirus severely reduced the lifespan of someone young and healthy who will likely only get a mild case of Covid-19. It’s worth noting here that we still don’t know the long-term effects of even mild cases of the new virus.

In the 2013 conviction of a Gauteng man for deliberately infecting a person with HIV, the courts took a conservative approach, arguing that HIV infection would shorten a person’s lifespan and so could be classed as attempted murder.

This view was in spite of the fact that research published in the same year in the journal PLOS Medicine, found that South Africans on antiretrovirals could expect to have near-normal life expectancies, provided they started treatment before their CD4 counts — a measure of the immune system’s strength — dropped to below 200.

For this reason, the question of whether someone can be convicted of attempted murder for spreading the novel coronavirus is open, but could be guided by previous cases on HIV.

The violence viruses leave in their wake

However, before we decide to criminalise the transmission of SARS-Cov-2 as we did with HIV, it is important to consider how it will impact on the most vulnerable.

When HIV transmission was criminalised, some believed it would have a public health benefit.

Women are more likely to test for HIV than men, in part because almost all pregnant women will be willing to help prevent mother-to-child HIV transmission and because they may be more likely to seek out healthcare more broadly. Because of this, laws that criminalise HIV transmission disproportionately affect women, argues an editorial in The Lancet.

This exacerbates the violence many women already face when they become the first in a household to test for HIV and become vulnerable to blame and accusations, authors write. As a result, HIV criminalisation laws not only undermined public health efforts by disincentivising testing, they also disproportionately harmed women.

“The threat of prosecution is a potential disincentive for women to leave abusive relationships,” researchers write. “[Globally,] some laws are so broad that they criminalise transmission of HIV during pregnancy and breastfeeding.”

SARS-Cov-2 may be new, but the idea that the spread of a virus can be criminalised, isn’t. We have seen from HIV that criminalisation doesn’t stop the spread of a disease — in fact, it may do quite the opposite and it may harm those who are already the most vulnerable.

For these reasons, we should think very carefully about whether criminalising the spread of the coronavirus will help or hurt South Africans as we battle the outbreak. MC

Safura Abdool Karim is a senior researcher and health lawyer at PRICELESS SA, the South African Medical Research Council Centre for Health Economics and Decision Science. She is a 2020 Aspen Institute New Voices Fellow. Follow her on Twitter @AkSafs. This comment piece was produced by the Bhekisisa Centre for Health Journalism. Subscribe to the newsletter.