Law Opinion

How #COVIDiots may be held responsible for their actions

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Cartoon by Mark David / @MDavidCartoons

Anushka Britto ponders whether individuals spreading COVID-19 by breaking the rules and violating quarantine requirements should be held legally accountable for the consequences of their actions.

THE Code of Hammurabi was one of the early judicial systems dating back to 1754 BC Mesopotamia. It is one of the earliest examples of a constitution, a way of regulating a government.

This code is interesting because of its influence on our modern-day judicial system, which is loosely derived from the biblical reference “an eye for an eye, a tooth for a tooth”. Like our current justice system, there are consequences for actions committed against an individual or a business, or responsibilities not fulfilled against an individual or a business.

Our laws appear straight forward — if you do something wrong, you must make amends to fix it or bear the punishment to pay for it. This aims to provide both a solution for the impacted person and the protection of the wider community from further impact.

In most modern societies we do not literally claim an eye for an eye. We do not cut a man’s hand off for stealing a loaf of bread, we do not castrate an adulterer for cheating. But there is a line drawn in the sand, somewhere, on what is acceptable and what is barbaric. The question of who draws that line and where they draw it is largely left to societal acceptance of what is reasonable.

Our laws are mostly focused on tangible losses to an individual — theft, bodily harm, assault, murder. How do you make amends for crimes such as these? Most of the time you can’t and so the consequence is incarceration as a means to rehabilitate the criminal and protect the public.

When we ponder the equity of justice in relation to actions taken or not taken that have more intangible impacts – the impact on an individual’s life, their future, their health, their welfare, how do we make amends for such impacts? Specifically, how do we make amends for the impact we have on an individual’s health due to our own lack of care?

Take, for instance, an intimate relationship. There are many incongruences in the way that couples deal with the impact of their lives on each other. In a heterosexual relationship, imagine if contraception accidentally did not work (or was not used) and a partner fell pregnant. The other partner is usually expected to contribute towards the impact of that life change — specifically, the cost of raising a child, or an abortion, whatever their decision might be. Is it reasonable to expect a partner to share the cost of contraception that is used by one person in the relationship when the benefits of that contraception are realised by both partners? An article in The Atlantic on the sharing of birth control costs suggested that cost-sharing is not the norm among heterosexual relationships.

What about STDs? In an intimate relationship, there is an expectation of full disclosure on your sexual health and, to some extent, history. Without going through them all, human papillomavirus (HPV) is a highly contagious virus, spread through sexual contact. HPV causes almost all cervical cancer and some cancers of the vulva, vagina, penis, anus and throat. Most men are asymptomatic carriers and probably don’t know if they have HPV, as there is no screening procedure for men. HPV is as common as the cold and four out of five people have at least one type of HPV at some time in their lives. While there is a vaccine for four strains of HPV that is now provided to girls and boys in high schools that provide some protection against the two strains that cause 80% of cervical cancers in Australia, it does not provide complete protection.

In a heterosexual relationship, is it a man’s responsibility to disclose to a female partner that he may have HPV if he is aware of this possibility, and therefore increase her risk of getting cervical cancer from which she may never recover? What about if the partner knew he most likely had a high-risk strain for cervical cancer? Would he then need to disclose this to future partners to allow them to monitor their health more closely and be alert for symptoms? If one partner passed on an STD to the other, the cost of potentially lifelong treatment, or in some instances – such as HPV – the risk of terminal cancer is usually borne by an individual, not the couple. How would a partner "make amends" for this impact to and potential loss of the other’s life?

What are the ethical responsibilities of disclosure of information in an intimate relationship and how this can impact a partner’s health, and quality of life, not to mention the financial cost of treatment? There are a lot of variables at play which makes it impossible to pin down accountability in the case of HPV. Furthermore, how can we assign responsibility if an individual lacks the knowledge of their own status as an HPV carrier?

Let’s bring it back to the other virus, the one that has been on all our minds and where we also have asymptomatic carriers.

The current pandemic highlights the question of responsibility that each individual has on sharing their health information and history with those who are considering being in their bubble. Like the impact of choices made in a personal relationship, there should be an ethical and moral obligation to disclose how we have socially distanced, who is in our "bubble" and what risks we carry in passing on COVID-19.

For countries such as Australia and New Zealand which are so far managing contact tracing and able to identify how the majority of individuals contracted the virus, is there a requirement for the individual who passed it on to "make amends"? And if so, how so?

If, for example, 90% of Victoria’s second wave of COVID-19 cases can be linked back to one family of four in hotel quarantine and the other 10% to three or more travellers, that means that these people have caused the chain reaction that resulted in thousands of infections, dozens of deaths, not to mention the economic and social impact.

Do we revert to the Code of Hammurabi and demand an eye for an eye, or exercise judgement as to whether the transmission of the virus was due to an accident or negligence? Who makes this judgement? Can we hold an individual accountable if they have followed all the rules, but passed coronavirus on and inadvertently killed someone due to lack of knowledge of their own carrier status? What if they did not follow the rules, and knew they had COVID? These are all questions we must consider.

There are currently individuals flagrantly breaking the rules and violating their quarantine requirements, passing COVID-19 on in the community. There are individuals who refuse to wear masks who may also be passing on the virus.

If it is identified that these individuals have caused the death of another individual through their actions, how do we expect them to make amends for that? Do they apologise profusely, do they do gaol time, do they pay for the patients’ loss of income? Do they pay for their funeral costs? How do they make amends for the loss of quality of life they have caused to another or the potential loss of life?

If we applied the rules of Hammurabi in Babylonian times, perhaps this would result in the infector supporting the patient through their treatment, their loss of income and their family’s ongoing mental health counselling to deal with the potential loss of life. Is this a step too far? Who gets to draw the line in the sand between what is reasonable and what is barbaric?

Anushka Britto is a day-time auditor, night-time philosopher, writer and creative spirit who lives in Melbourne.

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