ACLU launches legal challenge to Tennessee’s discriminatory, stricter prostitution law

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The American Civil Liberties Union (ACLU) filed a lawsuit in Memphis last week against the state of Tennessee on behalf of four people convicted of aggravated prostitution who were required to register as “violent sex offenders” for life. The ACLU also filed on behalf of OUTMemphis, the state’s oldest and largest service provider for LGBTQ+ Tennesseans.

Tennessee is the only state in the country that requires people with HIV convicted of prostitution to register as “violent sex offenders” for their entire life.

The ACLU challenges the aggravated prostitution law and lifetime sex offender registration requirement, saying they violate the Americans with Disabilities Act by punishing people with HIV, a protected disability, more harshly than others who are not HIV-positive. The lawsuit also challenges the law and requirements for sex offenders under the 14th Amendment’s Equal Protection Clause and the 8th Amendment’s ban on cruel and unusual punishment.

The Aggravated Prostitution Act was passed in 1991 at a time of national panic over HIV. Since the introduction of a sex offender registry in 1994, people convicted of aggravated prostitution have been required to register as sex offenders for 10 years. In 2010, a conviction for aggravated prostitution was classified as a “violent sexual offense” and required lifetime registration as a sex offender.

The law targets people who engage in sex work, who are often Black cisgender and transgender women, who engage in “survival sex” – the practice of people who are homeless or otherwise disadvantaged having sex in exchange for food, shelter , drugs or exchange money to meet their basic needs. Eighty-three people were on the Tennessee sex offender registry for aggravated prostitution, and nearly all of them were arrested as a result of interactions with undercover police officers who recruited them during sting operations.

Molly Quinn, executive director of OUTMepmphis, said the law “only targets people based on their HIV status and keeps them in the cycle of poverty while providing absolutely no benefit to public health and safety.” Those convicted of prostitution spend years in prison and are registered as violent sex offenders for the rest of their lives, leaving them unable to access housing, employment, healthcare and community life.

Tennessee is not the only state that criminalizes people with HIV, as a total of 25 states still have the same fear-driven laws from when HIV first emerged in the 1980s. Tennessee has no similar law for other infectious diseases, including those that are more common and transmissible than HIV.

In the documents filed, the ACLU noted the following:

“The aggravated prostitution law does not require an investigation into the underlying facts and circumstances in an individual case. For example, the law does not permit consideration of the alleged sexual activity in question; the degree of associated risk of HIV transmission (if any); whether preventive measures such as condoms, PrEP or PEP were used; the client’s HIV status; whether the accused person has a suppressed viral load; nor whether their HIV status has been disclosed.”

Criminalizing HIV will not reduce HIV transmission. The plaintiffs are asking the court to strike down the aggravated prostitution law and the resulting lifetime registration requirement for sex offenders as clearly discriminatory because they unlawfully punish people on the basis of a protected disability.

Sources:

Plaintiffs File Federal Lawsuit to Overturn Tennessee’s Tougher Prostitution Law | American Civil Liberties Union

Fact Sheet: Legal Challenge to Tennessee’s Discriminatory, Strict Prostitution Law | American Civil Liberties Union

OUTMemphis vs. Lee | American Civil Liberties Union

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