Systemic stigma: Tennessee’s anti-HIV law enforcement targets people of colour, trans people, and poor people

At least 154 people living with HIV have been placed on Tennessee’s sex offender registry and labelled as a “violent sexual offender” for charges stemming from their HIV-positive status, according to a report published by the Williams Institute at the University of California Los Angeles. Many of those impacted also had to serve time in prison.

There are alarming disparities by race, class, and geography in enforcement of two HIV-specific laws which are largely wielded against Black people and those living in Memphis.

HIV criminalisation laws, which criminalise otherwise legal behaviour or enhance penalties for crimes based upon a person’s HIV status, are a worldwide problem. These laws disproportionately impact people of colour and those with other marginalised identities, such as gender and sexual minorities.

Like most HIV criminalisation laws, Tennessee’s do not require actual HIV transmission, intent to transmit, or activities that pose a risk for transmission to be present. ‘Aggravated prostitution’ is a charge that elevates sex work from a misdemeanour to a felony because of a person’s HIV-positive status.

Black women are more often impacted by these charges, which nearly always stem from mere conversations with undercover police officers without physical contact. Often, law enforcement uses the aggravated prostitution charge to target transgender women engaging in survival sex to meet basic needs, according to a separate qualitative study by one of the report’s authors.

Tennessee’s other anti-HIV law is more often wielded against Black men. ‘Criminal exposure’ occurs when people living with HIV engage in certain activities without first disclosing their HIV status, including ‘intimate contact’, blood/tissue donation, and sharing injection equipment.

Tennessee places those convicted of an HIV crime on the sex offender registry which is a lifelong requirement for those convicted after 2010. Being a registered sex offender comes with its own stigma and consequences.

Methods

Nathan Cisneros from the Williams Institute and colleagues searched a publicly available sex offender database and cross referenced specific legal codes and short descriptions that indicate an HIV-related crime from enactment of the laws. They also received 77 case files with more detailed information from Shelby County, home to Memphis.

A qualitative study by one of the report’s co-authors, Dr Robin Lennon-Dearing, adds insight gained from 14 women who have been arrested (but not necessarily convicted) for aggravated prostitution in Shelby County.

Results

Researchers identified 234 HIV-related convictions which resulted in 154 individuals being placed on the sex offender registry between 1993-2019. This represents 0.6% of the 26,143 total people on the registry in the state. Of the 154 people, around half (51%) were convicted of aggravated prostitution, 46% were convicted of criminal exposure, and 3% were convicted of both.

Overall, nearly half (46%) of the HIV-related registrants were women even though males represent 96% of the overall registrants and the majority of people living with HIV in the state (74%). Most (75%) of the HIV-related registrations were among Black people, who make up 55% of all people living with HIV, and only 17% of the state’s population.

Taken together, the compounding effect of sex and race is sobering. Black women were 290 times more likely to be on the registry for an HIV-related crime than were White men. The registry does not report on gender identity so the full impact on gender diverse, trans, or nonbinary people is not known. The registry also does not report on ethnicity so the full impact on Hispanic and Latino people is not known.

Overall, the geographic distribution of those on the sex offender registry reflects that of the state’s population. Yet this differs considerably for HIV-related convictions. Shelby County makes up 13% of the state’s population, yet accounts for 64% of HIV-related convictions, with 51% of criminal exposure registrants and 74% of aggravated prostitution registrants living in Shelby County.

Aggravated prostitution in Shelby County

Researchers analysed in-depth case files for 58 arrests that resulted in 57 people (one person was arrested twice) being convicted of aggravated prostitution in Shelby County. There was one conviction of aggravated prostitution per 115 people living with HIV in the county. For context, this is 30 times higher than St. Louis, Missouri, which has one conviction per nearly 3,000 people living with HIV. Jackson County, Missouri (Kansas City) has none.

All of the 58 cases analysed by researchers involved a Memphis police officer making the arrest. Three cases involved regular patrol officers. Only one case stemmed from a complaint, and only two cases involved an actual client. A full 95% of cases only involved discussions between the person and an undercover police officer.

In two of the cases, an undercover officer alleged that the person they arrested approached them. The rest, representing 91% of all cases, resulted from sting operations done by the Memphis Police Department’s Organized Crime Unit (vice squad). In each of these arrests, undercover police officers were the ones to initiate the contact. As one focus group participant described it:

“The police are going to do things to try to entrap you. Whether they say they are or not. They are gonna ask you leading questions, ya know, and make it appear that you have purposefully done whatever.”

The sting operations specifically targeted people that the police assumed to be engaging in street-based sex work. One woman described her arrest in a focus group:

“The first time I got charged with aggravated prostitution which, I really wasn’t doing nothing. I was actually walking from my house to the store. So I’m walking and this dude kept following me. Sir, why is you following me? He talkin’ about, do you need a ride? I say okay cuz what the hell? I hopped in and he took me down to the store and we’re sittin’ up in the lot. I was getting ready to get out and that’s when the police swarmed the car talkin’ about I’m prostituting, and I said naw. Cuz I didn’t say nothing about no prostituting, quoting a price or nothing. All I said was sure since you following me. I’ll let you drop me off at the store.”

People who engage in street-based sex work are extraordinarily vulnerable to violence. They are often trying to meet survival needs in the context of significant personal, social, and structural barriers and multiple marginalised identities. For example, among the case files that had such information, only one person did not report a history of drug or alcohol use. From the qualitative study:

“Ya, drugs was me. Cuz I was with a man and he put me out there. I had to hit the streets for him. He used to abuse me. He beat me up in front of the children. He didn’t care.”

“Black women were 290 times more likely to be on the registry for an HIV-related crime than were White men.”

Most of the 57 convicted people were Black (90%) and most were women (77%); overall 57% were Black women. The case records and sex offender registry do not have information on gender identity; however 12/14 of participants in the qualitative study were transgender women. They described being targeted by police because of their gender identity, saying there was an unwritten law against “walkin’ while trans”. One woman said:

“Yes, yes yep, if they see you walking in midtown and you’re trans, you’re a prostitute. That’s the assumption.”

Of case files that had such data, most (69%) reported that the person charged did not finish high school. Nearly half (44%) had no employment history. Participants in the qualitative study described how anti-trans discrimination made it very difficult to obtain other employment:

“I’ve been discriminated against multiple times because of my gender [identity], yes. I’ve had that a lot. The reason I don’t work is simply for that reason.”

Forced into poverty by discriminatory systems, many transgender women engaged in sex work out of necessity:

“[Prostitution] is the only way we can make money, cuz how else we gone get a job?”

The case files also reveal this economic desperation: prices discussed for sex acts ranged from no money, just a place to sleep for the night, to a high of $120 for sex with two people. The average prices ranged from $15 for oral sex, $20 for vaginal sex, to $64 for anal sex.

In stark contrast, bail amount among the 15 case files with such data averaged $6,500, with some bails being set as high as $50,000 and some people being held without bail. People were released without bail in only two cases. In another two cases people were released on bond (i.e. a fee is paid to a bail bond company which then pays bail on the defendant’s behalf).

But largely, people were held in jail as they were unable to make bond, including six people who could have been released for a mere $100. Participants in the qualitative study described the demeaning treatment they experienced in custody:

“The thing that gets me is that when they get you down there, they wanna demean you. Especially knowing that you a trans woman or whatever. ‘Take that wig off, take this off, do this and do this!’ Cuz it’s very embarrassing, first of all, to do that in front of a whole bunch of men. And you would think that some women officers would have some compassion…some kind of empathy, but they don’t. They’re the worst ones.”

Even if they had the means to bail out of jail, many would be back. The statewide data showed that a third of those convicted of an HIV-related offence had repeated convictions, which were nearly all for aggravated prostitution. One woman described:

“I know a lot of people experience police harassment because of a previous charge… like in certain neighborhoods, if you’re caught in, the police will rearrest you… they will recharge you… They profile trans here in Tennessee and if they have just the speculation of you doing some illegal activity that’s enough for them to arrest you.”

The repeated targeting by police did not appear to be related to HIV status. HIV was only discussed in one of the cases. In nearly all cases (97%), the arrests were for misdemeanour prostitution with the enhancement to aggravated prostitution coming later when their HIV-positive status became known:

“After that charge I went to court, and I got regular probation until they checked with the health department. So I got the regular prostitution which was a $100. I had somebody bail me out. When I went back to court they said with doing the investigation with the health department they were gonna upgrade my charge to attempted aggravated prostitution and appoint me a public defender.”

Even if the sex acts discussed had occurred, the likelihood of transmission ranged from zero to very little. Around half (47%) were about oral sex. Only two cases involved discussing a sex act that had a greater than 1% per act chance of transmission in the absence of prevention strategies like condoms or HIV treatment.

Criminal exposure in Shelby County

Researchers analysed 20 cases from Shelby County where people were arrested and convicted for criminal exposure to HIV.

Unlike aggravated prostitution cases, all criminal exposure cases stemmed from the police receiving a complaint. Twelve cases involved alleged non-disclosure during an ongoing sexual relationship, and four of those cases also involved an additional domestic assault or aggravated assault charge. In three cases, the alleged non-disclosure was to a casual same-sex partner.

Three cases had sexual assault charges as well. The only non-sexual case was when a Black woman was charged for allegedly spitting on a police officer while in custody. The other 19 people convicted were Black men.

The average age was 34. No one had graduated from college. About a third reported recent employment history while a third had no employment history. Among the cases that had such details, all reported a history of alcohol use, substance use, or both.

Like aggravated prostitution, criminal exposure charges do not require HIV transmission or risk of transmission. The level of detail included in case files varied but being on HIV treatment was mentioned in at least four files. In two cases, it was discovery of HIV medications by a partner that led to the arrest. The report did not mention whether actual HIV transmission was mentioned in any of the cases.

Half of the cases had information about bail, which was an average of $26,000. Two people were held without bail. Three people were released on bond and the rest remained in custody. Nine cases had information about representation. A third of those cases involved a public defender or court appointed attorney; the rest hired a private attorney.

Consequences of the charges

Less than half of the case files had information on sentencing. Based on those that did, the average prison sentence was nearly three years (range 1-8) for aggravated prostitution cases and 3.75 years for criminal exposure (range 3-5). After incarceration, people have to register as a sex offender.

Regardless of whether they are parents or guardians of children, they are barred from certain places including schools, playgrounds, places of worship that have daycare facilities, or medical and treatment facilities with a proximity to children. Their identity and information about their crime, and thus their HIV status, is provided to schools and other organisations. One focus group participant shared:

“When I got charged with aggravated prostitution, like I said, I was addicted to drugs. But I’ve been clean for 15 years now and it affects me tremendously. I have grandkids. Grandkids that graduate kindergarten. I can’t come. Why? Because they’re putting it [aggravated prostitution] into the same category with a person that has sexually molested or raped a child. I have never even been convicted of passing HIV to anyone, let alone did something to a child. “

As registered sex offenders, they must check in quarterly and report all changes of address. Failure to so is a felony. In Tennessee, HIV-related registrants are much more likely to be labelled as an ‘absconder’ for failing to report an address change compared to people on the registry for a non-HIV crime (19% vs 3%).

“Being labelled a sex offender increased the reliance on sex work to meet basic needs.”

It can be hard to report an address you don’t have. HIV-related registrants were over twice as likely to be unstably housed compared to others on the registry. Being on the registry can negatively affect both housing and employment. From the focus group:

“I was working through Staffline and I already had the job. They fired me because I was a registered sex offender. I mean I’ve had jobs that tell me just because I was a registered sex offender that I could not work there. It has been messed my life up completely. Those two things; a job and somewhere to stay…. It’s what you need….you know what I’m sayin’? And I’ve been denied both. Numerous times.”

This cyclical reinforcement of the very factors that led to sex work in the first place was a recurring theme in the qualitative study. Being labelled a sex offender increased the reliance on sex work to meet basic needs:

“For me I have gave up and it made me go back to prostituting. If I can’t get no job and I can’t get no money, it ain’t nothing else to do but go back to my hustle.”

Limitations

The authors noted that the report likely did not fully capture the impact of anti-HIV law enforcement in Tennessee. Those charged with criminal exposure for blood or tissue donation or sharing syringes are not required to register as sex offenders and thus are not represented.

Some people may have been removed from the registry. This includes those who passed away or those convicted of aggravated prostitution before 2010 who successfully petitioned the court to be removed after being on the registry for ten years with no new charges. Some people impacted by these laws may have negotiated a guilty plea to a lesser or different charge to avoid being placed on the sex offender registry.

Others may have been charged, but not convicted. For states in which data are available, only 29 – 54% of HIV-related arrests resulted in a conviction. Even without conviction, merely being charged with a crime can carry life-disrupting consequences such as incarceration, expenses for bail and representation, impacts to family and employment, mental health consequences, and discrimination related to the charges or HIV status.

Conclusion

Enforcement of anti-HIV laws in Tennessee disproportionately impacts Black people, the socioeconomically disadvantaged, and transgender women.

These laws do not require actual HIV transmission, intent to harm, or any activity that poses a risk for HIV transmission to occur. Despite this, those convicted in Tennessee face serious consequences impacting every facet of their life and lifelong involvement in the criminal justice system. From the qualitative study:

“We all deserve justice regardless of who we are or what we are going through. Having HIV, you get labeled as being a sex offender, which is crazy. You want to further drag me through the mud, and not just that, you want to put [my HIV status] out there for everybody to know.”

Enforcement of these laws does not promote justice; rather it amplifies pre-existing injustices. Advocates, including the current US President, urgently call for their repeal and/or modernisation.