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DOJ Tells Tennessee to Stop Enforcing Law Affecting Sex Workers with HIV

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

The U.S. Department of Justice says a Tennessee law that makes it a felony and requires lifelong sexual offender registration for someone who knows they have HIV to engage in sex work violates a federal anti-discrimination law.

In a letter released Friday, the DOJ instructed state and Shelby County officials to stop enforcing Tennessee’s so-called aggravated prostitution statute. Advocacy organizations prompted the DOJ's investigation after filing a complaint last year.

Federal prosecutors contend an aggravated prostitution charge unlawfully singles out HIV positive individuals for harsher penalties by raising a standard prostitution conviction from a misdemeanor to a felony and requiring sex offender registration.

According to the DOJ, this is discriminatory treatment under the American with Disabilities Act, which protects people living with HIV or AIDS.

“The aggravated prostitution statute does not require any individualized determinations. It is a blanket criminalization of people living with HIV, which is not grounded in current medical knowledge,” reads the letter the DOJ sent to officials, including Tennessee Attorney General Jonathan Skrmetti and Shelby County District Attorney Steve Mulroy.

Shelby County is specifically named because of its high number of aggravated prostitution prosecutions. According to a 2022 report from the Williams Institute at the UCLA School of Law, nearly 75 percent of those listed on Tennessee’s sex offender registry for an aggravation prostitution conviction reside in the county.

The DOJ says the law is outdated because of medical advances in treating the disease, noting that the Centers for Disease Control and Prevention say “people living with HIV who are on treatment and have undetectable viral loads have effectively no risk of transmitting the virus to sexual partners.”

The policy further stigmatizes individuals by forcing them to register as sex offenders, the DOJ outlines in the letter. The sex offender label limits where someone can work, live and even their ability to be around family members.

In addition to directing Tennessee officials to cease enforcing the law, the DOJ also tells them to expunge the records of those with a past conviction.

Failure to take action could result in a lawsuit, the department said.

In a statement, Mulroy’s office said that DOJ’s findings predate him taking office but that he intends to fully cooperate with the department.

Brandon James Smith, the chief of staff for Skrmetti, said his office would give the findings “appropriate consideration.”

He added in a statement that the office looks forward “to finding out more about DOJ’s apparent cooperation with local activist organizations and private litigants related to this matter.”

Aggravated prostitution came about in 1991 as lawmakers across the country scrambled for ways to curb the spread of the often misunderstood disease even as health advocates warned it would discourage testing.

The state also passed a criminal exposure law in 1994 that makes it a felony for anyone not to disclose an HIV diagnosis to a sexual partner. (The legislature voted last year to end the sex offender registry requirement for an exposure conviction).

The DOJ makes no mention of Tennessee’s exposure law. Still, advocates count the determination that the aggravated prostitution policy is discriminatory as a significant win.

S. Mandisa Moore-O'Neal with the Center for HIV Law and Policy, the primary group behind the original complaint, said the news will help not only people in Tennessee but groups across the country who are trying to challenge their states' own so-called HIV criminalization laws.

“In a moment where many state budgets are already tight, the possibility of new and often costly litigation may be the impetus to change these laws,” she said.

Thirty-five 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 CDC.

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