The U.S. Department of Justice (DOJ) filed a lawsuit against the state of Tennessee on Feb. 15 over the state’s “aggravated prostitution statute,” citing its discrimination against HIV-positive people.
The lawsuit, filed in the U.S. District Court for the Western District of Tennessee, follows the department’s investigation in December, which found that the statute violates the Americans with Disabilities Act (ADA).
Assistant Attorney General Kristen Clarke said the lawsuit indicates the department’s commitment to ensuring that “people living with HIV are not targeted because of their disability.”
“The enforcement of state criminal laws that treat people differently based on HIV status alone and that are not based on actual risks of harm, discriminate against people living with HIV,” she said in a press release.
“People living with HIV should not be subjected to a different system of justice based on outdated science and misguided assumptions,” Ms. Clarke added.
According to the lawsuit, Tennessee’s aggravated prostitution law elevates “what would otherwise be a misdemeanor to a felony based solely on a person’s disability.”
A person convicted of aggravated prostitution faces up to 15 years in prison and a fine of up to $10,000, while a person convicted of a misdemeanor charge based on the same conduct is subject to a penalty of no more than six months in prison and up to a $500 fine.
The state’s law also categorizes aggravated prostitution as “a violent sexual offense,” mandating registration on the state’s sex offender registry, typically for life.
According to the DOJ, individuals placed on the registry due to convictions for aggravated prostitution face restrictions on where they can live and work. They also need to publicly disclose their HIV status, which can lead to harassment and discrimination.
The majority of those convictions occurred in Shelby County, with many people being arrested by the Memphis Police Department’s organized crime unit as part of “decoy operations,” it stated.
“Individuals are often given a ‘suspended’ sentence which allows them to be put on probation first,” the DOJ stated in its lawsuit.
“In many cases, DA’s offices will pursue a petition to revoke suspended sentences if the individual violates the terms of their probation (including for failure to comply with sex offender registration requirements or to possess required identification). Once a suspended sentence is revoked, an individual cannot remain on probation.
“As a result of either their initial convictions or these revocations, individuals convicted of aggravated prostitution often end up serving time in jail or prison, including in state-operated facilities,” it added.
Tennessee is the only state in the United States that imposes lifetime registration as a “violent sex offender” if convicted of engaging in sex work while living with HIV, regardless of whether the person knew they could transmit the disease.
Prostitution has long been criminalized as a misdemeanor in Tennessee. But in 1991, Tennessee lawmakers enacted an even harsher statute that applied only to sex workers living with HIV. Nearly 20 years later, the state legislature revised the law once more by requiring lifetime sex offender registration for those convicted under the controversial statute.
In the years since, the Centers for Disease Control and Prevention warned that laws criminalizing HIV exposure—many of which were enacted amid the height of the AIDS epidemic—are outdated and ineffective.
HIV and AIDS are considered disabilities under the ADA because they substantially hinder life activities. The landmark 1990 federal law prevents discrimination against disabled people in various areas, including employment, parking, and voting.
