Tennessee recently made headlines by agreeing to remove HIV-positive prostitutes from the state’s sex offender registry. This marks a significant policy shift following lawsuits from the American Civil Liberties Union (ACLU) and the Justice Department.
The state’s aggravated prostitution laws imposed harsh penalties for prostitutes who exposed people to HIV. These punishments included lifetime registration as sex offenders.
Critics argued that the policy was draconian and discriminatory because it did not take into account advancements in HIV treatment and prevention.
For more than three decades, Tennessee’s “aggravated prostitution” laws have made prostitution a misdemeanor for most sex workers but a felony for those who are HIV-positive. Tennessee toughened penalties in 2010 by reclassifying prostitution with HIV as a “violent sexual offense” with a lifetime registration as a sex offender — even if protection is used.
At least 83 people are believed to be on Tennessee’s sex offender registry solely because of these laws, with most living in the Memphis area, where undercover police officers and prosecutors most often invoked the statute, commonly against Black and transgender women, according to a lawsuit filed last year by the American Civil Liberties Union and four women who were convicted of aggravated prostitution. The Department of Justice challenged the law in a separate suit earlier this year.
Both lawsuits argue that Tennessee law does not account for evolving science on the transmission of HIV or precautions that prevent its spread, like use of condoms. Both lawsuits also argue that labeling a person as a sex offender because of HIV unfairly limits where they can live and work and stops them from being alone with grandchildren or minor relatives.
The ACLU’s complaint argued that the measure “is the only law in the nation that treats people living with HIV who engage in any sex work, even risk-free encounters as ‘violent sex offenders’ subjected to lifetime registration.”
Tennessee is not the only state that has this type of law. Several states have legislation that imposes penalties on people who have sexual relations with others without disclosing their HIV-positive status. Some of these laws require offenders to register as sex offenders.
Those supporting the law punishing those who expose others to HIV argue that it protects public health by deterring those who might engage in this behavior and knowingly harm others. The measures hold accountable those who disregard people’s health and ensure justice for those who have been affected.
Critics of these laws contend that they are based on outdated science and do not reflect the current realities surrounding HIV transmission and treatment. The medications available today significantly reduce the risk of transmission. Moreover, for many who are HIV-positive with an undetectable viral load, there is almost no risk of transmitting the disease, according to the Centers for Disease Control and Prevention.
Following the lead of hundreds of HIV experts and prevention organizations around the world, the Centers for Disease Control and Prevention (CDC) this week stated there is “effectively no risk” of an HIV-positive person with an undetectable viral load — the amount of HIV in blood — sexually transmitting the virus to an HIV-negative partner.
Bruce Richman, executive director of the Prevention Access Campaign’s Undetectable=Untransmittable initiative, called the CDC’s statement “remarkable.”
“This is the moment we have been waiting for,” Richman said in an interview with HIV Plus magazine. “The CDC agreed … there is ‘effectively no risk’ of sexually transmitting HIV when on treatment and undetectable. The overwhelming data clearly shows that taking our medication daily protects our health and our partners.”
Still, the transmission of the virus could prove harmful in many situations. Given the new science and medication, there could be room for modifying some of these laws. But the fact that there is no guarantee that someone won’t unknowingly get the disease from another person means that there should still be measures aimed at protecting them – especially from those who are aware that they have been infected and still choose to act irresponsibly.