The Department of Justice is taking Tennessee to court to challenge its enforcement of a state law that makes it a felony for someone who knows they have HIV to engage in sex work.
In suing Tennessee, the DOJ argues the state’s so-called aggravated prostitution statute violates the federal American with Disabilities Act, which prohibits discrimination of people based on their HIV status.
Aggravated prostitution raises a standard prostitution charge from a misdemeanor to a felony if a convicted person knows they are HIV positive. An additional penalty of lifelong sex offender registration is also required.
“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,” Assistant Attorney General Kristen Clarke with the DOJ’s Civil Rights Division said in a press release.
The legal challenge follows a letter the DOJ sent to Tennessee officials in December threatening the lawsuit if they did not comply with a request to cease enforcement of the law and enter into negotiations with the department.
In the letter, the DOJ highlighted the negative impacts that sex offender registration has on individuals. The registry not only publicly discloses a health diagnosis, the department says but also limits where someone can work and reside or be with their family, resulting in poor housing and job prospects.
The American Civil Liberties Union and other advocacy groups also filed a separate suit against the state last year, similarly opposing the aggravated prostitution law and additionally challenging its constitutionality.
Tennessee Attorney General Jonathan Skrmetti has sought to dismiss the ACLU’s complaint, citing in part that it lacks valid discrimination claims.
“Tennessee’s decision to safeguard the public health by punishing those who knowingly engage in prostitution—a method of transmission not disputed by plaintiffs—more than passes rational basis muster,” the motion to dismiss reads. “The aggravated prostitution statute is not discriminatory because it criminalizes knowing conduct, not being HIV positive.”
Skrmetti’s office said in a statement that it is aware of the DOJ’s current complaint and will review it.
The aggravated prostitution charge came about in 1991 as lawmakers across the country scrambled for ways to curb the spread of HIV even as health advocates warned it would discourage testing.
Tennessee 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 DOJ’s lawsuit says that medical advances have changed the perceptions of and treatment for the disease since then.
While there is still no cure, according to the Centers for Disease Control and Prevention, medication can suppress someone’s viral level to a point where it is effectively impossible to sexually transmit it.
More than 30 states have HIV criminal exposure laws, according to the CDC, but the health agency encourages states to either update them to reflect modern science or repeal them. A growing number of states have.
Tennessee’s legislature voted last year to end the sex offender registry requirement for an exposure conviction.
Currently, lawmakers are considering doing the same for aggravated prostitution. While a proposed bill with bipartisan support would strike down the law’s sex offender registry component, it would not eliminate it as a crime.
But Robin Lennon-Dearing, a professor at the University of Memphis who has researched Tennessee’s HIV-related laws, says that doesn’t go far enough. Advocacy groups, she says, have struggled to garner enough support from lawmakers to repeal the aggravated prostitution law.
She hopes the DOJ’s lawsuit succeeds because it would mark a long-sought victory for those she says have suffered by being labeled sex offenders.
“Having this law in Tennessee means that people living with HIV are treated as criminals,” Lennon-Dearing says. “They’re seen as criminals, and it’s wrong.”
The DOJ lawsuit calls for those with aggravated prostitution convictions to have their records expunged, removed from the registry and receive compensation for registry and court costs.
