Criminalisation of epidemic spreading: the Coronavirus affaire

Issue 6/2020

Abstract. Both the attention of public opinion and the activity of Governments are presently focused on the risk of infection with Covid-19 (the so-called Coronavirus). The World Health Organisation has declared the disease a pandemic, due to its very high spread rate over very wide areas and/or continents. The interest in the virus infectivity lies in its severe consequences on public health. This paper aims at determining whether individuals continuing to have contacts with other people although being aware of having been infected or simply exposed to the Coronavirus, thus ignoring the legal measures intended to slow or halt the spread of the disease, may be held criminally liable. Our study therefore examines the different instances of criminal behaviours described in articles 438 and 452 of Italian criminal law also with reference to their structural limitations and social or political implications. The correct determination of the psychological aspects of the crime is the major challenge encountered when attempting to define criminal liability for spreading epidemic diseases, together with the exploration of the causal nexus between a given behaviour/activity and a harmful event involving for a high number of people in a wide area. De iure condendo, this should induce legislators to adopt ad hoc types and instances/occurrences of crime, determined according to the dangerous effects produced by certain activities on public health.

This article was submitted anonymously for evaluation by two expert reviewers, with a positive outcome.

SUMMARY: 1. Spreading of Covid-19 epidemic. – 2. Instances of criminal liability for epidemic spreading of Covid-19. – 3. Criminal liability for Covid-19 disease transmission: a) the notion of epidemic and requirement for the “spread of pathogenic germes” ex art. 438 of Italian criminal law. – 4. (Continued from previous point): b) omissive behaviours and criminalisation. – 5. The psychological element. – 6. Jurisprudential orientation in the application of laws criminalising the spread of epidemics: a) HIV virus transmission sexually 7. (Continued from previous point): b) Public water contamination. – 8. The effective configurability of the crime of culpable epidemic in the case of omissive behaviour of the healthcare professional. – 9. Concluding considerations on the configurability of the epidemic crime against the called “spreaders”.

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