Tennessee aggravated prostitution law discriminates against HIV-positive people, DOJ alleges

The Department of Justice (DOJ) has filed a lawsuit alleging Tennessee has violated the Americans with Disabilities Act (ADA) for the state’s enforcement of aggravated prostitution against HIV-positive people.

The lawsuit, filed Thursday, follows an investigation by the DOJ that said the state unlawfully discriminates against people who have HIV.

The law subjects HIV-positive people to harsher criminal penalties for engaging in prostitution because of their HIV status, “regardless of any actual risk of harm,” the DOJ alleges in the lawsuit.

Prostitution is a misdemeanor offense, and Tennessee law categorizes aggravated prostitution as a violent sexual offense and requires people to register to the state sex offender registry, typically for life.

“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 said in a statement. “People living with HIV should not be subjected to a different system of justice based on outdated science and misguided assumptions.”

State lawmakers are close to approving a change to the law. The legislation would remove only the requirement that people convicted of aggravated prostitution must register as a violent sex offender, The Associated Press reported.

LGBTQ and civil rights advocates filed a federal lawsuit in October challenging the statute, arguing it discriminates against HIV-positive people. The complaint contended Tennessee is the only state in the country that requires people to be on the violent sex offender list for life if they are convicted of engaging in sex work while HIV-positive, regardless of whether they knew they could transmit the disease.  

The DOJ’s investigation found the state law elevates “what would otherwise be misdemeanor conduct to a felony” because of the person’s HIV status.

“A person convicted of aggravated prostitution faces three to 15 years in prison and a fine up to $10,000, while a person convicted of a misdemeanor charge based on the same conduct is subject to penalty of no more than six months in prison and up to a $500 fine,” the DOJ said.

When the AIDS epidemic caused panic and the spread of misinformation in the 1990s, Tennessee enacted the aggravated prostitution statute, which was a felony and applied only to HIV-positive sex workers. It later was reclassified in 2010. Other states have repealed HIV criminal laws in recent years, the AP reported.