Tennessee's Controversial Sex Worker Law Discriminates Against Those With HIV: DOJ

An investigation conducted by the Department of Justice found the enforcement of a 1990 Tennessee law violates the Americans with Disabilities Act (ADA) by unfairly discriminating against sex workers living with HIV.

The investigation singled out the Memphis area and Shelby County District Attorney’s Office (SCDAO) for its disproportionately high number of prosecutions under the law, which elevates a misdemeanor prostitution charge to a felony for sex workers found to be living with HIV with lifetime registration on the state’s Sex Offender Registry (SOR) in most cases.

“Tennessee’s aggravated prostitution law is outdated, has no basis in science, discourages testing and further marginalizes people living with HIV,” Assistant Attorney General Kristen Clarke of the Justice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.”

Tennessee law currently criminalizes prostitution as a misdemeanor, usually punishable by a small fine, but 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 (TN-SORA).

The DOJ singled out Shelby County for its use of the law. The investigation cited a June 2022 study by the Williams Institute at the UCLA School of Law that the county accounted for 74 percent of individuals on the SOR for aggravated prostitution despite having only 13 percent of the state’s population.

Shelby County was also targeted for the highly deceptive manner in which 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, and were only charged with misdemeanor prostitution. Most 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 DOJ investigation found the Shelby County District Attorney General’s office would use this information to then prosecute those living with HIV for the more serious aggravated prostitution charge.

The report listed numerous complainants from 2000 to 2020, although most of the prosecutions occurred between 2009 to 2012.

The current Shelby County District Attorney Steven Mulroy noted that most of the prosecutions occurred between 2009 and 2012, long before he came into office in September of last year.

“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, Skrmetti’s chief of staff, said in a statement according to the AP.

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 who 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, OUTMemphis, in a statement provided to the AP.