DOJ says Tennessee violated ADA by enforcing state law against HIV sex work

Tennessee's enforcement of its aggravated prostitution law against people living with HIV violates the Americans with Disabilities Act, the U.S. Department of Justice announced Friday, warning that continued enforcement could result in a federal lawsuit.

The Justice Department said the state, including the Tennessee Bureau of Investigation and the Shelby County District Attorney's Office violated the ADA, the landmark 1990 federal civil rights law that prohibits discrimination against people with disabilities. Tennessee's Attorney General could not immediately be reached for comment after hours on Friday.

The Justice Department's investigation found that the state and the Shelby County District Attorney's Office "subject people living with HIV to harsher criminal penalties solely because of their HIV status, violating Title II of the ADA." Tennessee is the only state in the U.S. that requires lifetime registration as a violent sex offender if convicted of aggravated prostitution, regardless of whether the person knew they could transmit the disease.

"Tennessee's aggravated prostitution law is outdated, has no basis in science, discourages testing and further marginalizes people living with HIV," said Kristen Clarke, assistant attorney general of the Justice Department’s Civil Rights Division. "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 findings were detailed in an 11-page letter to Attorney General Jonathan Skrmetti.

"The State and the [Shelby County District Attorney's Office] discriminate against individuals with disabilities by enforcing Tennessee's aggravated prostitution statute, which elevates to a felony conduct that would otherwise be a misdemeanor, solely because the individual charged knows they have HIV, regardless of any actual risk of harm," according to the letter. "Aggravated prostitution is also categorized as a 'violent sexual offense' mandating registration on the Tennessee Sex Offender Registry, in most cases for life."

The state's aggravated prostitution statute is a felony. A person convicted of aggravated prostitution faces three to 15 years in prison and a fine of up to $10,000. A person convicted of a misdemeanor prostitution charge faces a sentence of no more than six months and up to a $500 fine. The aggravated prostitution statute applies statewide, but the Justice Department said it has been enforced most frequently in Shelby County, the largest county in the state.

The state's Sex Offender Registry restricts registrants from living or working within 1,000 feet of any school, childcare facility, or public park or playground. The Justice Department said this leads to increased homelessness.

"For those living in densely populated cities like Memphis, where the aggravated prostitution statute is most enforced, these requirements make it difficult for people on the SOR to find anywhere they can live or work without violating the [Sex Offender Registry's] requirements," according to the letter.

The Justice Department said the treatment of both HIV and AIDS has changed since the state's aggravated prostitution law was passed in 1991.

"There has been significant progress in the understanding of and treatment of HIV. Beliefs and assumptions that individuals with HIV will spread it, or that having HIV is a death sentence, are now outdated and unfounded," according to the letter.

The Justice Department said the state must stop enforcing the aggravated prostitution law, including the sex offender registration requirements triggered by aggravated prostitution convictions. The Tennessee Bureau of Investigation must take people convicted of aggravated prostitution off of the state's Sex Offender Registry. It also listed other actions for both the state and TBI to fix the problem.

"We hope to work cooperatively with the State and the SCDAG to resolve the Department’s findings. If either the SCDAG or the State declines to enter into negotiations, or if our negotiations do not succeed, the United States may take appropriate action, including initiating a lawsuit," the letter said.

The Friday announcement coincided with World AIDS Day, an international day dedicated to raising awareness of the AIDS pandemic. Untreated HIV can lead to AIDS.