There is a fundamental error with the assertion that “the right to infect” others is not a protected liberty.

A recent contributor astutely pointed out that drunk driving is prohibited because it poses a risk to other citizens and concluded that, in a similar way, refusing to wear a mask or vaccinate presents a threat to public health. While this argument may seem reasonable at first blush, it is based on the presupposition that an unmasked/unvaccinated person poses a real (as opposed to theoretical) risk to others.

Fortunately, an uninfected person poses zero risk of coronavirus transmission; only someone with an active COVID infection poses a risk of spreading the virus to others. Of note, an August report from the Center for Disease Control and Prevention showed nearly three-quarters of new COVID cases arising from large gatherings in a Massachusetts town occurred in vaccinated people. The suggestion that unvaccinated people are a legitimate threat to public health is deeply concerning to anyone who values the rule of law.

Surprisingly, only 35 states have laws criminalizing HIV exposure (Oregon is not one of them). State laws relating to communicable diseases vary in strictness, but according to Harvard Law, “… in order to establish a cause of action for a negligent conduct, a plaintiff must establish that (1) the defendant owes him or her a duty; (2) there was a breach of that duty; (3) there is a causal connection between the defendant’s conduct and the harm incurred to the plaintiff; and (4) damages to the plaintiff.” Prosecutors may be able to charge assault and battery or criminal negligence, but only if the burden of proof is satisfied. As it turns out, the “right to infect others” may actually be protected if there is insufficient evidence.

An argument that equates a personal medical decision with running over pedestrians in a crosswalk is absurd and completely ignores the structure and function of the American justice system. We should not be accusing people of crimes just because we feel their actions threaten our current way of life. When we leave legal matters in the hands of the mob, we end up lynching people based not on evidence of a crime committed, but on our own ignorance and bigotry.

The argument that unvaccinated people are selfishly (and criminally) putting others at risk makes an appeal to emotion, but it lacks legal and evidential support.

Rebecca Patton


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