How Could They Not Tell Me?

I am lucky.  I simply can’t imagine what it must be like to have tested positive, especially if one is in a vulnerable category.

But almost everyone — guilty here, too — and particularly those who reside in a hot spot for COVID-19, has experienced scarily agonizing moments during the past month. Days or even hours until the symptoms (that may, after all, have been totally psychosomatic) subside. Perhaps a dry cough, chest discomfort, shortness of breath: “Oh my God, I have it. My life, as I know it, is over.”

And then the (totally unscientific) attempt at tracing begins — “How, from whom, did I get it?” Put more directly, “Who gave this to me?” Or better still, “Is it because I went to the market, to the park, touched the elevator button?” turns into “Why wasn’t the doorman wearing a mask; how could that man walk his dog without covering his face?” The mind races, and then a different type of paranoia sets in: “Who have I given it to?”  A normal reaction from any thinking and thoughtful individual, right?

And it’s not only about intending to impose blame or assess fault, but also (perhaps neurotically) to blame oneself for carelessness in ignoring the signs, and unwittingly risking the health, maybe the lives, of others — especially loved ones.

The burning issue though is different, and hardly the other side of the coin. It’s when someone has symptoms — maybe even if they have not tested positive — and cavalierly makes no effort, takes no affirmative steps, to keep the potential or even confirmed virus from spreading to others who have not been the least bit negligent in protecting themselves.

We’re not talking here, for example, about members of the religious or other communities that have recklessly allowed their populations to engage in public events such as weddings, funerals and religious observances. This is not about the Jewish Charedi leaders nor Bishop Gerald Glenn, who told his congregants that “God is larger than this dreaded virus” and brazenly opened his church outside Richmond, Virginia.  Bishop Glenn, since, fell to the virus.

Those communities well knew what was at stake with COVID-19 and decided to leave it in God’s hands.  And with that mindset, perhaps the individuals experiencing symptoms accepted a shared belief that participating in a religious event carried a public safety net (put in place by God) not only for the symptomatic person but also his or her possible “victim(s).”

This is so far worse than in the aftermath of the Surgeon General’s 1964 well-publicized report about cigarette smoking. Yes, any smoker was immediately on notice that smoking was harmful to his health, but retained the right — still does — to take his life into his own hands by cavalierly continuing to smoke.  And yes, the smoker later came to learn that he was exposing others based on “second hand” smoke. But there, the potential victim knew as well as the smoker that she was potentially at risk.

Instead, we speak here about the individual who simply “doesn’t tell” and goes about their business impervious to (or is it reckless about?) the possible death – no word short of it will do — that they might be unleashing on others who simply don’t know the medical condition of the person with whom they’re interacting. So much like what occurred in the ‘80 when the AIDS virus was rampant and killing those who weren’t told, often by casual sex partners, that they had tested positive. Think about that in the current context where the virus can reportedly be transmitted through the air even at a distance from the carrier.

And maybe the transmittal can happen just by going to the mail room. Talking to the doorman. Picking up a monthly supply of (unrelated) pills at the pharmacy. Getting food at a grocery. Does the symptomatic or even positive-tested person think, in this day and age when we are bombarded daily with the realities of the death toll, that the mask and glove uniform by someone who is a carrier (whether she knows it or not) will be sufficient and that, with those armaments, everyone else is fully protected?

Yes, it is not just ourselves that we need to protect; we really do have an obligation to others. And an obligation to actually understand how our actions impact them. Put aside family, friends and neighbors. If we don’t expose them, that’s nice. But what about the nameless and faceless workers with whom we come into contact daily, if we’re just going for a brief walk, getting the mail or going to the grocery store?  Are they “the little people” whom we choose not to care about in the grand scheme?

Lawsuits, including frivolous ones, will result from this and most won’t succeed for a variety of reasons, including lack of proof. There will be those who will bring them, though, containing direct accusations by “victims” or, more sadly, the estates of victims against those who might only be characterized as “perpetrators.”  The Department of Justice has already classified the virus as a biological weapon.  In fact, a Florida man who allegedly spit in the face of a police officer and “falsely” claimed to have coronavirus was charged with perpetrating a “biological weapons hoax.”

But the “stories” — whether vivid and detailed accounts of recklessness or “it must have happened here”— will be reminders of what reckless people uncaringly visited on their neighbors, friends or others with whom they come in contact. Consider the legacy that such lawsuits (transmitted on a “viral” internet) will be for the offenders — dead or alive.

And, a more imposing question, if you learn that someone is clearly symptomatic or has tested positive and is keeping that knowledge to themselves —  going about their business without warning those with whom they may come into contact — don’t you yourself have an affirmative obligation, at least morally, as a member of the family of man, to do something?

And if we don’t, don’t we ourselves somehow become a “moral” accessory?  Ever since Judas Iscariot, no one has admired the “informer.”  But the whistleblower or ”informer,” if that’s how some will prefer to characterize them today in disparaging terms, can save lives.  Is there anything more important than that?

About the Author
Joel Cohen is a white-collar criminal defense lawyer at Stroock in New York and previously a prosecutor. He speaks and writes on law, ethics and policy (NY Law Journal, The Hill and Law & Crime). He teaches a course on "How Judges Decide" at Fordham Law School and Cardozo Law School. He has published “Truth Be Veiled,” “Blindfolds Off: Judges on How They Decide” and his latest book, "I Swear: The Meaning of an Oath," as well as works of Biblical fiction including “Moses: A Memoir.” Dale J. Degenshein assists in preparing the articles on this blog.The opinions expressed in this article are not necessarily those of the Stroock firm or its lawyers.
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