The Biden Department of Justice opened a lawsuit against the State of Tennessee Thursday arguing that state laws that impose additional penalties on sex offenders who are HIV positive “discriminate against people living with HIV.”
Under Tennessee law (Title 39 Ch. 13 § 39-13-109), the “Criminal exposure of another to HIV is a Class C felony,” and (Title 39 Ch. 13 § 39-13-516.) Aggravated Prostitution which entails knowingly committing prostitution while infected with HIV is also a Class C felony. Both laws require a lifetime addition to the Sex Offender registry.
As reported by The Associated Press, the lawsuit stems from a DOJ investigation completed in December that resulted in the Justice Department warning Tennessee and the Tennessee Bureau of Investigation that the statute purportedly violates the Americans with Disabilities Act. The case is proceeding alongside another filed by LGBTQ+ groups related to the aggravated prostitution statute in particular.
Notably, the AP reported, “Tennessee is the only state in the United States that imposes a lifetime registration as a ‘violent sex offender’ if convicted of engaging in sex work while living with HIV, regardless of whether the person knew they could transmit the disease.”
This directly contradicts the verbiage of the law which states verbatim, “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 [emphasis added].”
Per the AP though, Tenessee legislators are working toward approving a change to the law that rather than striking it entirely would remove the requirement of a lifetime registry as a violent sex offender for those convicted.
Assistant Attorney General Kristen Clarke of the DOJ Civil Rights Division argued in a press release Thursday, “People living with HIV should not be subjected to a different system of justice based on,” what she referred to as “outdated science and misguided assumptions.” She suggested the “lawsuit reflects the Justice Department’s commitment to ensuring that people living with HIV are not targeted because of their disability.”
While HIV and AIDS are considered to be disabilities under the Americans with Disabilities Act 37 states currently enforce laws criminalizing the act of engaging in criminal sexual activity ranging from rape and sexual assault to prostitution while knowingly infected with HIV or AIDS. To date, only the states of Illinois, New Jersey, and Virginia began to repeal felony-level criminal codes in 2021 under Democrat administrations.
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