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Does Tennessee's Prosecution of HIV-Positive Sex Workers Unlawfully Discriminate?

By T. Evan Eosten Fisher, Esq. | Last updated on

In a recently announced lawsuit, advocacy groups are challenging the legality of Tennessee's criminal statute that enhances penalties for sex workers with HIV.

The law, passed in 1991, elevates what would normally be a misdemeanor offense of prostitution to a felony charge of “aggravated prostitution" for those offenders who know they are infected with HIV (human immunodeficiency virus), the virus that can cause AIDS (acquired immunodeficiency syndrome). The suit is brought on behalf of four women convicted under the statute who have faced criminal punishment and suffered collateral consequences as a result, including a lifetime requirement that they register as sex offenders. Tennessee is currently the only state that mandates sex offender registration for the crime of aggravated prostitution.

The suit seeks to invalidate the statute, expunge convictions, and eliminate the registration requirements for those convicted under the law. According to a 2022 report, 83 people in Tennessee are registered as sex offenders because of aggravated prostitution convictions. If successful, the suit would also prevent the state from pursuing any new charges arising under the statute.

The legal basis for the challenge to the statute arises from the prohibition of discrimination against HIV-positive people under both the Americans with Disabilities Act (ADA), a federal law, and the Equal Protection Clause of the Fourteenth Amendment. The suit also alleges violations of due process and seeks to challenge the legality of changes to Tennessee's sex offender registration requirements.

2023 Medicine vs. 1991 Statute

Although HIV-positive people are legally considered to have a disability, advances in medicine have made it increasingly possible for HIV-positive people to lead more ordinary lives. Critics of the challenged Tennessee statute note that it fails to account for many of these advances, which have the effect of lessening both the likelihood of HIV transmission and the harm caused to those who may contract the virus.

With modern antiretroviral treatment (ART), HIV-positive people can reduce both the effects of the virus and their chances of transmitting it to sexual partners to nearly zero. At the time the Tennessee aggravated prostitution law was enacted, however, an HIV diagnosis was considered by many to be a death sentence. Today, that outdated viewpoint fails to account for the available medical treatments.

Spreading Disease (especially HIV) can be a Crime

Intentionally causing another person to become exposed to or infected with a disease is generally punished as a form of assault across the U.S. Fueled by the same strong anti-HIV sentiment that spawned Tennessee's aggravated solicitation statute, about 30 states, including Tennessee, passed laws that criminalize acts that expose others to HIV.

Earlier this year, lawmakers in Tennessee amended that statute by removing the requirement that those convicted must register as sex offenders, but they left the registration requirement for aggravated prostitution convictions in place.

Critics of Tennessee's aggravated prostitution law, including the plaintiffs in this suit, argue that the law fails to account for the use of condoms and new medications that can dramatically reduce the chance of transmitting HIV through sexual contact. They also point out that the statute does not punish HIV-positive clients who expose sex workers to the disease, nor does it account for those who spread other sexually transmitted diseases.

The risk of spreading disease does not always justify a state's discriminatory treatment of HIV-positive people. For example, the U.S. Department of Justice intervened to end a practice in Nevada's prisons, where HIV-positive prisoners were segregated from those who did not have the virus. That prison policy was found to violate the ADA and was determined to be medically unnecessary and without any legitimate health justification.

It remains to be seen whether the district court will find that Tennessee's aggravated prostitution law also violates the ADA. However, the plaintiffs in the suit have also put forth a separate argument that Tennessee's law is unconstitutional.

Fourteenth Amendment's Equal Protection Clause

Constitutional law enthusiasts will be keenly interested to see which level of scrutiny the District Court uses to evaluate the plaintiffs' equal protection claim. Generally, these claims are evaluated under one of three standards: strict scrutiny, intermediate scrutiny, or the rational basis test.

Courts use strict scrutiny to evaluate discriminatory acts that are based on suspect classifications such as race, religion or national origin or when a fundamental right is jeopardized. This most rigorous standard is unlikely to apply, as prostitution is not considered to be a fundamental right and HIV-positive status is not generally considered a suspect classification. Instead, the court could evaluate the statute using either intermediate scrutiny or the rational basis test.

Intermediate scrutiny would apply if the court finds that the HIV-positive individuals constitute a protected class. Previously, courts have found that laws discriminating on the basis of gender, parentage, or sexual orientation demand intermediate scrutiny. To survive intermediate scrutiny, the government must show that the statute furthers an important government interest by means that are substantially related to that interest. The plaintiffs could argue that the law does not advance any important government interest because it does not account for protective measures such as condom use or ART treatment.

The statute would have a better chance of surviving if the court uses the rational basis test, which is the least rigorous standard for evaluating equal protection challenges. Under such a test, Tennessee would only need to show that there is a legitimate government interest and that the statute is rationally related to that interest. Even under the rational basis test, the court could still rule that the law is unconstitutional if the judge is persuaded that it is not rational for the state to charge HIV-positive prostitutes as felons, but not to charge HIV-positive patrons of prostitutes similarly.

The choice of scrutiny standard and the court's analysis of the Equal Protection Clause under that standard should be pivotal to the ultimate conclusion and might influence constitutional arguments even beyond the Volunteer State.

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