The Justice Department warned the state that it could face a lawsuit if it doesn’t immediately cease enforcement.
An investigation by the federal agency singled out the Memphis area and Shelby County District Attorney’s Office for its disproportionately high number of prosecutions under the law.
LGBTQ+ and civil rights advocates have long criticized the measure as discriminatory, making it almost impossible to find housing and employment due to the restrictions for violent sex offenders. Earlier this year, the American Civil Liberties Union and the Transgender Law Center filed a lawsuit seeking to overturn the law in federal court
Tennessee law criminalizes prostitution as a misdemeanor, usually punishable by a small fine, but the district attorney raises the punishment. In most cases, sex workers living with HIV are charged with felony aggravated prostitution, a violent sexual offense, and face fines up to $10,000 and up to 15 years in prison. Those convicted also face lifetime registration as a violent sexual offender under the Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004.
Tennessee is the only state in the union that imposes a lifetime registration as a “violent sex offender” if someone is convicted of engaging in sex work while living with HIV, regardless of whether the person knew they could transmit the virus.
“Tennessee’s aggravated prostitution law is outdated, has no basis in science, discourages testing and further marginalizes people living with HIV,” Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division, said in a statement. “People living with HIV should not be treated as violent sex offenders for the rest of their lives solely because of their HIV status. The Justice Department is committed to ensuring that people with disabilities are protected from discrimination.”
The department wants the state to not only stop enforcing the law, but also remove those convicted under the statute from the sex offender registry and expunge their convictions. The agency also says Gov. Bill Lee should introduce legislation to repeal the law.
Court documents state that more than 80 people are registered for aggravated prostitution in Tennessee, according to the Associated Press.
The ADA is the landmark 1990 federal law prevents discrimination against disabled people on everything from employment to parking to voting. HIV and AIDS are considered disabilities under the ADA because they substantially hinder life activities.
The Justice Department singled out Shelby County for its use of the law. The county accounted for 74% of people on the sex offender registry for aggravated prostitution, but only has 13% of the state’s population, according to a June 2022 study by the Williams Institute at the UCLA School of Law cited in the investigation.
Shelby County also was targeted for the deceptive way it obtained the convictions. Most of those charged with aggravated prostitution were arrested as part of an undercover sting operation by the Memphis Police Department’s Organized Crime Unit. Suspects were only charged with a misdemeanor, and most of them were allowed to plead guilty and given probation.
A suspect’s HIV status is usually only provided voluntarily. Once convicted, however, a person must submit to HIV testing.
The Justice Department investigation found the Shelby County district attorney would use this information to prosecute those living with HIV for the more serious aggravated prostitution charge.
The report listed numerous complainants from 2000 to 2020; most of the prosecutions occurred between 2009 and 2012.
Shelby County District Attorney Steven Mulroy said most of the prosecutions took long before he came into office in September 2022.
“We are aware of the DOJ’s findings, will give them appropriate consideration, and look forward to finding out more about DOJ’s apparent cooperation with local activist organizations and private litigants related to this matter,” Brandon James Smith, Attorney General Jonathan Skrmetti chief of staff, said in a statement according to the Associated Press.
The same law is the subject of a separate federal lawsuit by OUTMemphis, an LGBTQ advocacy and support group for people living with HIV, and four individuals living with HIV. Those plaintiffs say they suffered discriminatory hardship following their conviction for aggravated prostitution and the resulting lifetime registration as a violent sexual offender. They are represented by the American Civil Liberties Union and the Transgender Law Center.
“OUTMemphis welcomes the DOJ’s findings that, through its outdated and punitive aggravated prostitution law, Tennessee is discriminating against people living with HIV,” Molly Quinn, executive director of OUTMemphis, said in a statement according to AP.