Pres. Biden’s Justice Department (DOJ) is suing Tennessee, claiming the state’s law against prostitutes, who know they have HIV and yet engage in sex with their clients, is discriminatory.
The DOJ’s lawsuit, filed Thursday, alleges that the State of Tennessee and the Tennessee Bureau of Investigation (TB) are violating the federal Americans with Disabilities Act (ADA) by punishing HIV-infected prostitutes who may knowingly risk infecting their customers.
A statute instituted in 1991 defines the crime as “aggravated prostitution” and makes it a Class C felony:
39-13-516. Aggravated prostitution.
(a) A person commits aggravated prostitution when, knowing that such person is infected with HIV, the person engages in sexual activity as a business or is an inmate in a house of prostitution or loiters in a public place for the purpose of being hired to engage in sexual activity.
(b) For the purposes of this section, "HIV" means the human immunodeficiency virus or any other identified causative agent of acquired immunodeficiency syndrome.
(c) Nothing in this section shall be construed to require that an infection with HIV has occurred in order for a person to have committed aggravated prostitution.
(d) Aggravated prostitution is a Class C felony.
[Acts 1991, ch. 281, § 2.]
Aggravated prostitution is also categorized as a “violent sexual offense,” which mandates registration by those convicted on the Tennessee Sex Offender Registry, in most cases for life. The state maintains the registry through the TBI.
The lawsuit uses the experience of a Black transgender woman (“Complainant A”) living in Memphis as an example of the hardships endured by those convicted of aggravated prostitution.
Complainant A, who learned that she has HIV in 2008, was arrested in 2010 and charged under Tenn. Code Ann. § 39-13-513 for prostitution near a church or school. Ultimately, she pled guilty to one count of Criminal Attempt, Aggravated Prostitution.
The DOJ lawsuit says that, as a result of her conviction, she has had difficulty finding housing, “struggled to find employment because employers run background checks and will not hire her because she is on TBI’s registry,” and been unable to spend time alone with her nephew.
“Complainant A is also prevented by Tennessee law from changing her legal name to match her gender identity,” the lawsuit adds.
“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 of the Justice Department’s Civil Rights Division said last December, when the DOJ first ordered Tennessee to stop enforcing the law.
But, as the statute quoted above clearly states, the offense is not being infected with HIV, but the willful endangerment of another person.
Nonetheless, the DOJ argues that medical advances made since the law’s passage now provide treatment for HIV and can protect HIV-infected people from infecting those they have sex with. Thus, it maintains, the blanket criminalization of HIV-infected prostitutes, without considering an individual’s personal status, is discriminatory.
The lawsuit opposes the statute’s elevation of prostitution from a misdemeanor (punishable by up to six months imprisonment and a $500 fine) to a felony (subject to imprisonment of 3-15 years and a maximum fine of $10,000). It also objects to listing those convicted on a registry available to the public.
The DOJ is petitioning the court to order Tennessee to cease enforcement of the law and expunge the names of those convicted of aggravated prostitution from the registry.
DOJ is also asking the court to “award compensatory damages to Complainant A and other aggrieved individuals with aggravated prostitution convictions for injuries caused by the ADA violations alleged in this complaint, including for registry fees, court costs and fines, bonds, and
Tennessee Attorney General Jonathan Skrmetti’s office has told the Daily Caller News Foundation that the office is aware of the complaint and will review it.
Prostitution isn’t the only offense with an “aggravated” designation in Tennessee, though most are sexually-based crimes. The two that aren’t are “Aggravated Kidnapping” and “Especially Aggravated Kidnapping”:
39-13-304. Aggravated kidnapping
39-13-516. Aggravated prostitution
39-13-502. Aggravated rape
39-13-531. Aggravated rape of a child
39-13-504. Aggravated sexual battery
39-17-1004. Aggravated sexual exploitation of a minor
39-13-507. Aggravated Spousal Rape
39-13-305. Especially aggravated kidnapping
39-17-1005. Offense of especially aggravated sexual exploitation of a minor