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ACLU Targets Tennessee Law Aimed at Reducing HIV Transmission by Prostitutes

ACLU Targets Tennessee Law Aimed at Reducing HIV Transmission by Prostitutes

The challengers argue the law criminalizes no-risk conduct, targets a disadvantaged group, and is counterproductive.

The ACLU challenged a Tennessee law criminalizing “aggravated prostitution” by HIV-positive individuals. The lawsuit, filed in federal court last Tuesday, makes it a felony for prostitutes aware of their HIV-positive status to engage in prostitution and requires offenders to register as a “violent sexual offender” for life.

An individual convicted of aggravated prostitution faces a jail term of three to 15 years and a fine of up to $10,000. By contrast, prostitution by HIV-negative individuals is a misdemeanor offense in Tennessee, which typically results in “a small fine and minimal jail time.”

The challenged law does not take into consideration the likelihood of HIV transmission, whether transmission was intended, or whether transmission occurred.

The ACLU, along with its Tennessee affiliate and the Transgender Law Center, argues the 1991 law is unconstitutional because it targets a disadvantaged group, HIV-positive individuals, and bears no rational relationship to achieving any policy goals.

The challengers argued the law is overly broad, targeting HIV-positive prostitutes whose “sexual encounters . . . pose no risk of HIV transmission” because the particular sex act posed little or no risk of HIV transmission, the parties used a condom, or the HIV-positive prostitute’s undetectable viral load made HIV transmission impossible.

The complaint argued that making criminality depend on knowing one’s HIV status discourages prostitutes from obtaining an HIV test, thus increasing the risk of HIV transmission.

Offenders must register as a sex offender for life

Tennessee’s sex offender registry law, as amended in 2004, added aggravated prostitution to the definition of “sexual offense” qualifying a convicted person as a violent sexual offender and requiring lifetime registration.

Registration, the challengers argued, imposes numerous hardships under the guise of protecting children and that these restrictions bear no relationship to the offense of “aggravated prostitution.”

For instance, an individual convicted of aggravated prostitution and registered as a violent sexual offender is “forbidden from working, living, or even spending short amounts of time within 1,000 feet of a school, playground, or other area where children gather.”

This restriction, according to the complaint, is unrelated to sex acts between adults, with which the aggravated prostitution law deals.

“The restrictions are particularly disruptive of family relationships,” the challengers argued, “even though such relationships are critical to successful community reintegration and are known to reduce recidivism.”

Challengers: the law discriminates based on disability

The challengers stated eight claims for relief, including that the aggravated prostitution and registry laws, by making HIV status relevant to a criminal offense and punishment, violated the Americans with Disabilities Act, under which HIV-positive status is a disability.

The complaint also argued the registry law imposes a cruel and unusual punishment and that its retroactive application to offenses predating 2004 means it imposes an unconstitutional retroactive criminal penalty. In 2003, the United States Supreme Court held that the retroactive application of a sex offender registry law was a nonpunitive civil measure and, therefore, constitutional.

The challengers seek to distinguish the Tennessee law, arguing “[t]he cumulative effect of the [registry law] creates a regulatory scheme that has been historically and traditionally viewed as punishment.”


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caseoftheblues | November 1, 2023 at 7:13 am

Hmmmm….. and yet the ACLU was silent on regulations requiring certain workers/employees be fired for not taking the experimental completely ineffective Covid “vaccine” for an illness with a 99% survival rate…because those people were such a threat to others…. As opposed to sex workers knowingly infecting their customers with AIDS … make it make sense

I wondered about the ACLU, and how they responded to COVID, and the ACLU was all in on vaccine mandates and COVID restrictions.

The ACLU is garbage that now serves only leftist special interest groups. The only COVID mandate the ACLU didn’t like was restrictions on border crossers.

So… they contend it’s an inalienable right to expose people to a fatal disease? Honestly, though, they should extend the law to cover any STD.

    Milhouse in reply to Crawford. | November 1, 2023 at 7:45 am

    No, they say it’s a right for people who have a fatal to engage in acts that do not expose people to it. They say that this law is not narrowly tailored to its stated purpose. And that it creates an incentive not to get tested.

      Flatworm in reply to Milhouse. | November 1, 2023 at 8:43 am

      You mean like COVID restrictions that apply whether you’re infected or not?

      And just how do they not expose people to it?
      Condoms are certainly not a cure-all. Neither are HIV-suppressant treatments.
      Anything that isn’t 100% perfect at stopping the virus (remember the argument about how masks don’t stop viruses?) is – at a minimum – willful negligence (without informed consent).

        Milhouse in reply to GWB. | November 2, 2023 at 12:12 am

        Condoms don’t reduce the risk to 0% but they do reduce it to no greater than sex with random people who don’t know their HIV status.

        Oral sex reduces the risk even further, down to negligible.

        Sex between women also has negligible risk.

        If we’re talking female prostitutes having normal vaginal sex with male clients, and neither of them have open sores, the risk of transmission is already almost negligible. Female=to-male transmission, under normal circumstances with people in normal health for a Western country, is basically not a thing. The stats on such transmission are almost all based on self-reporting; when NYC used to follow up on such reports, it found that almost all of them could be shown to be false. Which contradicted the official pravda on the subject, so they stopped investigating.

        See Michael Fumento’s work on the subject, back in the ’90s, culminating in his book “The Myth of Heterosexual AIDS

      CommoChief in reply to Milhouse. | November 1, 2023 at 9:00 am

      Agreed on the incentives. The baseline here is none of these acts, when performed for compensation, are legal.

      Personally, I think we should legalize and regulate prostitution within a ‘Bawdy house’ or for call girls who discreetly come to a client’s home or hotel . Similar testing and reporting to adult films. Basically get them off the streets, away from pimps, off drugs or other addictions. Safer for the sex workers, safer for the clients and it takes it off the streets.

        How would putting them in a brothel or under an “escort” service remove them from pimps? Or drugs and such?

          CommoChief in reply to GWB. | November 1, 2023 at 10:35 am

          Professional licencing with strict standards, monitoring and testing as a condition of the license. Both drug and STD screening. It creates a far safer ‘product’ and working environment as well as getting it off the street.

          Will this get every current sex worker off the street or put every pimp out of business overnight? Nope. However, by issuing the sex workers a professional license with industry specific standards and requiring a business license with operating standards plus all the other ‘wonderful’ hoops every other small business must jump through it sets the table.

          This must be accompanied by ruthless enforcement v any remaining sex workers, pimps and ‘Johns’ who operate outside the legal boundaries. ‘Golly gee MR Big Daddy pimp your employee is prepared to testify that’:
          1. You operate a prostitution business
          2. You don’t have prostitution manager licence nor have you complied with annual CE requirements or initial ed requirements.
          3. You don’t require employees to be licenced or complete their annual CE.
          4. You don’t pay State income taxes.
          5. You don’t pay Federal income taxes.
          6. You operate in a location not zoned for prostitution services.

          Lots of admin violations, misdemeanors and potentially a couple felonies in there. Plus all the back payment, fines and interest owed so any assets seized.

          The point is get a legal, far safer option that will when coupled with ruthless enforcement against unlawfully operating actors drive the bad actors off the streets and most out off business through competition. There will still be some illicit activities but it won’t be in the open and will be more expensive b/c it will be driven far underground.

    JohnSmith100 in reply to Crawford. | November 1, 2023 at 10:56 am

    “no-risk conduct”

    This claim is BS. Every encounter with a prostitute is risky, not as risky was each one night stand, but still some risk.

The state of TN should concede the ACLU has a point, rescind the law, and then immediately amend the law to incorporate prostitution as a single degree crime with the same prison term and fine as this law imposes. Don’t complicate things…

I agree with the ACLU. If you want to risk your life over a prostitute, go for it.
Here is the comparison…who would pick up a skank at the Circle K, Hunter or Don Jr?

There are definite points of ill fit between the law and its stated purpose, salient points that could easily have been remedied in the drafting of the law. But it’s less ill-fitting for its stated purpose than most gun control laws, which under prior “rational basis” rulings were considered “good enough” to stand.

The challenged law does not take into consideration the likelihood of HIV transmission, whether transmission was intended, or whether transmission occurred.
Why should it? Armed robbery laws seldom take into account whether the gun is loaded or even fake. Nor do assault laws.

    Milhouse in reply to GWB. | November 2, 2023 at 9:36 am

    Not at all alike. Robbery is malum per se. The state has a duty to make laws against it and enforce them. There is no reason why the state must make laws against HIV-positive prostitutes plying their trade in a safe manner.

E Howard Hunt | November 1, 2023 at 8:55 am

Perhaps the State should issue a Dear John letter.

I’d take out the sex offender registration and leave the rest of the law in force. We do want HIV+ to be deterred from working or further working as prostitutes.

“The challenged law does not take into consideration the likelihood of HIV transmission, whether transmission was intended, or whether transmission occurred.”

So then PRECISELY like drunk driving. If you’re going to permit one, you have to permit the other.

    Milhouse in reply to henrybowman. | November 2, 2023 at 9:39 am

    No, they’re not at all alike. Drunk driving by definition puts people at risk; if you get away with it, that’s sheer luck. In the cases we’re discussing there is no significant risk. The prostitutes are not putting their clients at risk, so the state has no legitimate interest in punishing them for it.