The Shelby County District Attorney’s Office has agreed with federal authorities to stop enforcing a state law that makes it a felony for a person who is knowingly HIV positive to engage in sex work.
The Department of Justice sued the state of Tennessee earlier this year over its so-called aggravated prostitution law, which officials argue violates federal civil rights protections because the law’s stiffer penalties discriminate against those on the basis of a known medical condition. A standard prostitution charge is a misdemeanor, but can be elevated to a felony if the individual has previously tested positive for HIV.
The DOJ singled out Shelby County because a majority of convictions for aggravated prostitution have taken place here, according to the lawsuit and research from the Williams Institute at the UCLA School of Law.
It is unclear how Shelby County’s agreement will impact the DOJ's lawsuit against the state. Attorney General Jonathan Skrmetti’s office did not immediately reply to a request for comment.
Health advocates have for years been critical of the penalties attached to the law. Those convicted of aggravated prostitution have to register as lifelong violent sex offenders, which opponents say creates harmful stigmas and barriers affecting where they can live, work and even seek medical treatment.
But Tennessee lawmakers did away with the sex offender mandate this year with a bipartisan measure that will also allow those currently listed as offenders – solely for an aggravated prostitution conviction – to apply to remove their names. It goes into effect in July.
The state legislature kept the felony aggravated prostitution provision itself, however, with expungement opportunities for those who can prove they are victims of sex trafficking.
Under the new consent decree, signed by District Attorney General Steve Mulroy last week, Shelby County prosecutors will no longer bring aggravated prostitution charges and must drop any currently under consideration.
Violations for noncompliance with the sex offender registry, specifically for an aggravated prostitution offense, must also be dropped, and prosecutors cannot oppose an individual's petition to eliminate any associated outstanding court costs, fees or fines.
The D.A.’s office also agreed not to pursue “other enhanced criminal charges or penalties on the basis of a defendant’s HIV status, unless the individual’s HIV posed a direct threat to the health and safety of others.”
A spokesperson for the District Attorney’s office did not immediately reply to request for comment. Previously Mulroy stated that the DOJ's findings predated him taking office and that he intended to cooperate with the department.
The American Civil Liberties Union and other activist groups have filed a separate complaint in Tennessee challenging aggravated prostitution on similar grounds as the DOJ.
Alexis Alvarez, a fellow with the ACLU’s racial justice project, praised the development in Shelby County but said the organization’s lawsuit will continue.
"Shelby County is where the majority of these convictions have historically occurred, so this is a very positive development,” Alvarez said in a statement. “However, the aggravated prostitution statute remains on the books throughout Tennessee, and those previously convicted continue to suffer the harms of this law.”
State lawmakers made aggravated prostitution a crime in 1991, before effective treatment for HIV was widely available. As a result of medical advances, the disease is no longer considered akin to a death sentence but treated as a chronic condition. While there is still no cure, current antiretroviral drugs can suppress HIV to a point where it cannot be passed to a sexual partner.
Tennessee also has a criminal exposure law that makes it a felony to not disclose an HIV diagnosis to an intimate partner. Health and reform advocates have argued that HIV-specific laws are outdated, contending they do not reflect modern treatment for the disease and do not take into account someone’s intent or ability to transmit the virus to others.
The Center for HIV Law and Policy, a national nonprofit which works to overturn and reform laws that single out HIV, said in a press release that the DOJ’s intervention “represents significant progress” and “provides a promising framework for ending HIV criminalization in other settings.”
Thirty-four states have some sort of HIV-specific criminal law and at least 12 have either modernized or repealed their statues in the last decade, according to the Centers for Disease Control and Prevention.
