State’s HIV criminal laws create disparities in Black communities

Tennessee’s legislation criminalizing HIV disproportionately impacts people of color and people experiencing poverty and homelessness. The laws perpetuate unwarranted fear and stigma against people living with HIV, and as the new report shows, punish many people who have caused no harm to others.

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A new report by the Williams Institute at UCLA’S School of Law, Enforcement of HIV Criminalization in Tennessee, reveals the racial and socioeconomic characteristics of people who have been convicted for an Hiv-related crime in Tennessee and the results are compelling.

Tennessee has two laws that apply only to people living with HIV. While regular prostitution is a misdemeanor, aggravated prostitution is when a person who knows that they have HIV engages in sex work. Criminal Exposure to HIV happens when a person living with HIV engages in intimate contact without first disclosing their HIV status.

Both aggravated prostitution and criminal exposure are felonies that carry sentences of up to 15 years in prison. Neither requires actual transmission nor the intent to transmit, and aggravated prostitution does not require physical contact for a conviction. In fact, allegations of actual HIV transmission are rare.

When HIV laws began and findings

HIV laws were enacted in the early 1990s before effective medications to treat and prevent HIV became available in 1996. Someone diagnosed with HIV today can expect to live a normal lifespan, and with effective antiretroviral treatment they pose no risk of transmitting HIV to their partners.

HIV criminalization subjects those convicted to a lifetime of negative social and economic harm. In Tennessee, everyone convicted of an HIV crime is required to permanently register on the state’s sex offender registry and are considered “violent” offenders. In practice, that means they can’t take their child to school or to the park. They can’t attend a church if there is a daycare on site. They can’t get medical care if there is a children’s ward nearby.

The Williams Institute’s new report found that 154 people are on Tennessee’s sex offender registry for an Hiv-related conviction. There are glaring racial disparities that exist when Black Americans make up 56% of people living with HIV in Tennessee but made up 75% of statewide convictions for an HIV crime. Women were only 26% of people living with HIV in Tennessee but made up 46% of statewide Hiv-related convictions.

70% of the women arrested for an HIV crime in Tennessee were Black women. A distinct pattern become apparent that people convicted of an HIV crime in Tennessee were Black and primarily Black women.

Unfortunately, the report was not able to count the number of people who might identify as transgender. Research has found that the transgender community has been highly impacted by HIV laws.

Socioeconomic indicators suggest that individuals convicted may be suffering from unmet basic needs. While Tennessee has a homeless rate of 0.11%, 19% of people convicted of an HIV crime were experiencing homelessness. Even though 92-98% of Tennesseans live in a household with access to at least one vehicle, only 21% of people convicted for an HIV crime had a vehicle. A picture emerges that people convicted of an Hiv-related offense are more economically vulnerable when compared to all Tennesseans.

How Shelby County’s Black community is affected by HIV laws

Racial disparities become starker when focusing on HIV convictions in Shelby County, home to Memphis. Shelby County accounts for only 13% of the state’s population yet 64% of all people convicted of an HIV crime in Tennessee live in Shelby County, compared to 9% in Davidson County, home to Nashville.

Black Americans were 90% of aggravated prostitution convictions in Shelby County and 100% of criminal exposure to HIV convictions.

The report also found that over 90% of aggravated prostitution convictions in Shelby County resulted from police sting operations, and that in nearly half these cases, the only allegation was a proposal for oral sex, which is not a transmission route.

Tennessee’s HIV criminal laws disproportionately impact people of color and people experiencing poverty and homelessness. They perpetuate unwarranted fear and stigma against people living with HIV, and as the new report shows, punish many people who have caused no harm to others.

The report leads us to ask why the state of Tennessee considers someone’s medical diagnosis to be a registerable sex offense. Who are these criminal laws serving?

Outdated HIV laws stigmatize and discriminate against people living with HIV and they need to be modernized.

Robin Lennon-dearing is an Associate Professor at the University of Memphis’ School of Social Work.

Nathan Cisneros is a HIV Criminalization Analyst at the Williams Institute in the UCLA School of Law.