MEMPHIS, Tenn. — In a new letter to Tennessee Attorney General Jonathan Skrmetti, State Senator Brent Taylor wants to know if an agreement between the U.S. Department of Justice and the Shelby County District Attorney’s Office to no longer prosecute people living with HIV under an aggravated prostitution statute is legal.
The DOJ and D.A. Steve Mulroy agreed in May 2024 to end those particular prosecutions after the federal government found the Shelby County D.A.'s Office violated the Americans with Disabilities ACT (ADA) by enforcing the state law, which imposes enhanced penalties for crimes based on a parson’s HIV status.
The Tennessee statute turns a misdemeanor prostitution charge into a felony if the person has HIV, “regardless of any actual risk of harm,” said the DOJ. If convicted under the statute, a person would face three to 15 years in prison and fine up to $10,000, while the same charge for someone without HIV would carry a sentence of no more than six months and fine up to $500.
The DOJ said the prosecutions did not consider the risk of transmission of HIV - which treatment can prevent or lower according to the Centers for Disease Control - and the harsher penalties included being charged with a felony rather than a misdemeanor and being required to register for life as a sex offender.
In the letter to the A.G. dated June 10, Taylor (R-Memphis) wanted to know if this is a legal agreement in the state of Tennessee, and why the DOJ went after state law through the Shelby County D.A. instead of taking the law to court. He also wants to know if the A.G.’s office can assign a special prosecutor for cases the local D.A. declines to prosecute.
When the agreement was announced, the DOJ said while the statue applies statewide, it is enforced most frequently in Shelby County. The department said it began investigating after complaints about enforcement of the statute.
The D.A.’s office also noted at the time of the announcement of the investigation in December 2023, the violations occurred under the prior administration, and Mulroy agreed to comply with the DOJ’s findings.
Taylor’s letter highlights recent concerns about an increase in HIV rates in Shelby County.
“We have an HIV problem and District Attorney Steve Mulroy refuses to enforce the law that will help address the issue,” he said. “… He has created a dangerous precedent by agreeing with the DOJ’s misguided views on aggravated prostitution. This damages the prosecutorial discretion of our state’s remaining District Attorneys General and gives defendants accused of aggravated prostitution unfounded ammunition throughout Tennessee.”
Reaction from Shelby County District Attorney
Shelby County D.A. Steve Mulroy issued the following statement Monday: “We have received questions about our agreement with the U.S. Department of Justice (DOJ) on Aggravated Prostitution prosecutions.
To be clear, we have NOT agreed to stop prosecuting prostitution. The normal prostitution statute remains at our disposal. As does the separate statute making it a Class C Felony to knowingly expose another person to HIV including by sexual contact.
We have agreed to stop setting aside HIV-positive prostitution for harsher treatment, even if that person is fully medicated, has a suppressed viral load, and is thus at no risk of infecting anyone. To do otherwise would entail fighting DOJ in federal court for the right to discriminate when this office had not initiated such a case in recent years, and we have other means to go after prostitution.
It’s important to point out that the State Legislature this year recognized the perils of painting all HIV-positive people with a single brush: it passed a law allowing persons convicted under this very statute to get themselves taken off the Sex Offender Registry, presumably because of a pending DOJ federal lawsuit against the State.
We’ll continue to prosecute prostitution as we have in recent years, without LGBTQ discrimination. More importantly, we will continue our laser focus on violent crime and other things that really matter, and avoid being tied up in cultural war distractions.”
The DOJ declined to comment.