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HIV-Specific Penalties for Sex Workers Come Under Legal Challenge

National Institute of Allergy and Infectious Diseases Flickr Account (Creative Commons)

A Tennessee law that makes it a felony for someone who knows they are HIV positive to engage in sex work is facing a legal challenge.

A new lawsuit, filed by the American Civil Liberties Union and other rights groups, alleges that the state’s so-called aggravated prostitution statute is unconstitutional and violates the American with Disabilities Act.

A standard prostitution conviction in Tennessee is considered a misdemeanor, but when someone who knows they have HIV commits the same offense, it becomes a felony called aggravated prostitution. It can carry a 3-15 prison term and requires lifetime registration as a sex offender.

This distinction – of enacting a harsher punishment for those with HIV – is the basis for the new lawsuit, says Jeff Preptit, a staff attorney with the ACLU of Tennessee.

“The Americans with Disabilities Act has denoted that people living with HIV are a protected class of people who have a disability,” he says. “So in effect, this statutory scheme is discriminating against people based off their disability status. which is not only violative of our federal Constitution but violative of the American with Disabilities Act ”

The suit is filed on behalf of four unnamed cisgender and transgender women who have been convicted of aggravated prostitution.

Under current law as registered sex offenders, they face severe restrictions on where they can live and work for the rest of their lives. The lawsuit says they experience humiliation and stigma as a result of their status as sex offenders and are unable to freely be around their grandchildren or other young relatives.

“It shows just the real world impact that these statues have had on people who are living among us – who simply want to be able to have access to housing, and have access to jobs, have access to healthcare and be able to live the lives that they know they are capable of,” Preptit says.

At least 83 people are listed on the registry for an aggravated prostitution charge, with most concentrated in Shelby County, according to the lawsuit. Research from the Williams Institute finds that the law, which was created in in 1991, disproportionately affects Black women and the “economically vulnerable.”

The legal challenge comes as health advocates have been working over the past decade to update or overturn laws across the country that criminalize exposure to HIV. In addition to aggravated prostitution, Tennessee also makes it a felony for someone not to disclose an HIV diagnosis to a sexual partner.

In general, these policies came about nationally in the ‘80s and early ‘90s when lawmakers were scrambling for ways to curb the spread of an often misunderstood disease that was considered a death sentence.

But, advocates say the laws do not reflect modern realities. Treatment for the disease is now at the point where someone taking their medicine is not able to sexually transmit the virus to others and have near-normal life expectancy.

Opponents to the laws in Tennessee have had incremental success in repealing them. With bipartisan support, lawmakers voted this year to eliminate the sex offender registry requirement for those convicted of criminal exposure to HIV. In 2015, the aggravated prostitution statute was amended to allow for victims of sex trafficking or abuse to apply to be removed from the registry.

A spokesperson for Attorney General Jonathan Skrmetti, who is named in the suit, said that as of Tuesday afternoon his office had not yet been served the complaint.

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