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.”DONATE
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