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Is It A Crime To Spit On Someone In Maryland?

It the classic demonstration of contempt in countless movies - spitting in the face of one’s enemy. But in an age of  COVID-19- not to mention Ebola, Zika, West Nile, HIV and a perhaps a heightened awareness of infectious, communicable disease generally, can such conduct be considered criminal? You've no doubt seen  on TV instances of allegedly, or potentially, COVID-19 positive individuals coughing on others, or on food at a grocery store. Some may argue that spitting is legally different than coughing, and certainly they are different physical actions. Though in both instances, the fear of contracting a communicable disease is present. Under Maryland law, a second degree assault is the non-consensual offensive touching of another. The offensive contact in question can be made by an object, as long as the alleged offender put the movement of that object in motion. In the same way that striking someone with a car, or throwing a baseball at them, may constitute an assault, so may spitting on another satisfy the elements of the crime. 

Spitting on someone could be prosecuted as an assault.

This is true irrespective of whether the alleged offender has a health condition that can be transmitted to others. When that factor is present, other provisions may come into play. With advent of COVID-19, these concerns are of course heightened, and I predict we will see an uptick in prosecutions.

Maryland separately punishes conduct that at least could arguably include spitting into the face of another, by those that are aware they have a disease which could be transmitted. I say arguably, because although the science may not be absolutely conclusive, there is some support for the proposition that spitting on someone may not be the type of physical contact necessary to transmit disease.1  A statutory provision that could be implicated here is not found in the criminal code, but rather under the Heath General Article, and provides that it is a misdemeanor to knowingly transfer or attempt to transfer the human immunodeficiency virus to another individual. It is certainly possible that these provisions could be amended to include the knowing transfer of COVID-19. 

Maryland law additionally makes related conduct a crime. It is separately illegal to cause another to ingest "bodily fluid" [defined as seminal fluid, blood, urine, or feces] against their will by use of force. Saliva, however, is not included in the definition of bodily fluid. A separate provision applies only in the context of prisoners and prison employees. It is, for example, a crime under Maryland law for a prisoner to maliciously cause guard to come into contact with seminal fluid, blood, urine or feces. Again, saliva is not a bodily fluid included in this definition. The penalty for this crime is significant: an offender faces a maximum of 10 years, no part of any sentence can be suspended, and, the sentence must be concurrent to the crime got the defendant there in the first place.

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   -This Article was updated by Eric Kirk on 8/27/20. 

 

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[ see e.g. https://www.aids.gov/hiv-aids-basics/hiv-aids-101/how-you-get-hiv-aids/ : “HIV does not survive long outside the human body (such as on surfaces) and it cannot reproduce outside a human host. It is not spread by: saliva, tears, or sweat that is not mixed with the blood of an HIV-positive person”.]