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Tennessee's 'HIV Criminalization' Laws Need to Change with Times, Advocates Say

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Katie Riordan
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While there's still no cure for HIV, today doctors consider the disease a chronic medical condition that they can treat with medication.

When Missy* moved to Memphis over a decade ago, she struggled to find employment. As a Black trans woman, she felt stigmatized. A friend suggested trying sex work.

“At that time, it helped me be able to put gas in my car to go look for jobs,” she says. “It helped me be able to get food to eat, and sometimes, you know, have enough I could get a hotel room for shelter.”

Missy eventually was arrested during a police sting and underwent HIV testing. It came back positive.

“Honestly, my reaction was numb,” she says.

Still, she rebounded⁠—started taking antiretroviral medication and landed a job at a department store. But almost two years later, she was again unemployed.

“The only other thing I knew how to do to make money was sex work,” she says.

Missy says she used protection and thanks to her medicine, she says, her viral count was too low to pose a risk of infecting others. But she was once again arrested in a police sting operation. This time, however, her HIV status factored into the penalties. She became a convicted felon and was listed as a lifetime registered sex offender.

“It literally consumes you,” she says, noting she has to check in with the state at least four times a year and cannot live or work within 1,000 feet of a school, daycare, park or recreation center.

“That’s all you can think about…I’m getting turned down for this job because of this,” she says. “I’m getting turned down for this housing because of this.”

Missy was charged with what’s known as aggravated prostitution as a result of knowing her HIV-positive status. That’s one of Tennessee’s two so-called HIV criminalization laws. A second law makes it illegal for anyone to not disclose an HIV diagnosis to an intimate partner.

But a growing faction of activists and legal reformers argue that it’s time to overhaul these policies.

They reflect a time when both an understanding of the virus and medical care for it were limited, says Robin Lennon-Dearing, a University of Memphis professor who wants to modernize the laws. She says they also promote stigma and create permanent barriers for people who live with what doctors now treat as a chronic condition.

Both crimes are felonies and punishable with three to 15 years imprisonment.

Tennessee is one of six states where such violations can also result in sex offender registration. About 150 names on Tennessee’s list are HIV-related.

“It’s not a criminal justice issue, it’s a health issue,” Lennon-Dearing says. “Even in the general public, people have myths and misunderstandings about it.”

The laws were enacted decades ago, in 1991 and 1994, when HIV was considered akin to a death sentence. That’s not true today. (About 30 other states also have similar criminalization statutes, although places such as California and Illinois have recently either rewritten or repealed them).

While there’s still no cure for HIV, modern medicine can reduce viral levels to the point it’s effectively impossible to transmit and allow for near normal life expectancy.

Lennon-Dearing says the state’s current punitive strategy doesn’t reflect that, nor does it take into account whether someone is acting with an intent to infect others.

She adds people might forego STD testing for fear an HIV diagnosis could potentially make them a felon.

“The way to end the epidemic is to get everyone tested, and if they test positive, to treat them,” she says. “We don’t need to be arresting them, we need to be treating them, putting them in care.”

At the time the criminal exposure law was passed in 1994, Tennessee’s own health commissioner warned lawmakers that the legislation could hamper public testing efforts, according to audio archives of a state Senate hearing.

When asked if HIV laws discourage testing, a representative from the current state Health Department said there is no Tennessee specific data on the issue, but pointed WKNO to statements from medical organizations that speak to the negative effects of HIV-specific laws.

The Centers for Disease Control and Prevention, the American Psychological Association and the American Medical Association have all recommended states update their legal approaches.

New research by Lennon-Dearing and Nathan Cisneros with the Williams Institute, a nonpartisan think tank, finds that the laws disproportionately affect women, Black people and— here in Tennessee—residents of Shelby County.

“We also know from the sex offender registry data that people with HIV convictions are more likely to be unstably housed—so homeless—less likely to have a job, more likely to have substance or alcohol use history,” Cisneros says.

Tennessee’s sex offenders face restrictions as to where they can work and live. Limitations also can interfere with parental obligations and even access to medical care.

“If you want to go into a treatment facility and that treatment facility is located in a hospital with a pediatric ward, you cannot go in there,” Cisneros says.

Earlier this year, the state Senate voted along bipartisan lines to drop the sex offender registry for a criminal exposure charge, with some calling the requirement a “misguided overreaction.” 

The measure failed in the House. Republican Rep. Bruce Griffey argued that people have a duty to disclose.

“What this bill would do is protect the lawbreaker who exposed somebody else to HIV without disclosing it,” he said. “What you’re going to do is allow them to hide that from [a] future, potential victim.”

But, advocates say reform doesn’t offer a free pass to transmit disease. Instead, they want penalties to apply only in cases where someone intentionally infects others and for cases to be treated as a misdemeanor, in line with other communicable diseases such as Hepatitis B or C.

As the laws are currently written, Nashville activist Brady Dale Etzkorn-Morris says they are easy to exploit because it can be very hard to prove in court that someone disclosed their status.

“I even know people who are stuck in abusive relationships because their partner holds their HIV status over their heads knowing that if you try to leave me, I will put you in jail,” he says.  

In 2015, one slight change to the law allowed victims of sex trafficking or abuse to get off the sex offender list for aggravated prostitution. For Tiffany,* who spent decades with that label, the reprieve has been life changing in ways big and small—she can finally go trick-or-treating with her daughter or walk in a park.

“To continue to punish individuals that cannot even pass it, it doesn’t make sense,” she says. “But it’s getting past those three letters—HIV. It’s getting past that stigma.”

She was trapped in a cycle of sex work for years because as a registered sex offender, she says, she couldn’t access the help she needed to escape abuse or drug addiction.

“It’s caused so much lost time of stability, education, housing, career,” she says.

Missy, too, who now works at an HIV services organization, would one day like her name cleared from the registry and her freedoms restored. She wants to start a family.

“With this criminalization thing, they’re looking at you as the virus instead of looking at you as a person, who’s trying to just live everyday life and just have everything that the regular person has,” she says.

Tiffany is optimistic that reaching lawmakers begins with some education about what it means to live with HIV today.

“There’s always hope that a different perspective is seen and more compassion and understanding for the HIV community,” she says. “We’re working together to end the HIV epidemic.”

*WKNO is using just first names and nicknames for some individuals in this story to protect their medical privacy. 

Katie is a freelance contributor to WKNO. She's always eager to hear your story ideas. You can email her at kriordan@wkno.org