We all know that the sex offender registry is ever evolving, and usually to the great detriment of our clients. However, Rachel Meeropol, ACLU Senior Counsel, recently reached out to me to highlight a class of potential clients that are no longer subject to registry requirements, should not be charged with registry violations, and are immediately eligible for removal regardless of whether they have been in substantial compliance. Here is what all of us in Tennessee need to know:
Under recent changes to Tennessee law, the crimes of “Aggravated Prostitution” (“AP”) and “Criminal Exposure to HIV” (“CE”) are no longer “sexual offenses” nor “violent sexual offenses.” This change in law, along with two recent settlements, has led to important changes for people with AP and CE convictions.
First, people with new AP and CE convictions do not have to register as sex offenders. The offense of AP occurs when “knowing that such person is [living] with HIV, the person engages in sexual activity as a business or is an inmate in a house of prostitution or loiters in a public place for the purpose of being hired to engage in sexual activity.” TCA § 39-13-516. Until July 1, 2024, AP was a C-Felony that required lifetime sex offender registration.
CE involves exposing another person to bodily fluid in any manner that presents significant risk of HIV transmission while knowing one is living with HIV, and without prior consent. TCA § 39-13-109. Until July 1, 2023, CE was a C-Felony that also required lifetime sex offender registration.
Legislation passed in 2023 and 2024 removed both crimes from the list of “sexual offenses” requiring sex offender registration. See TCA § 40-39-202. This means that people with such convictions are not required to register as sex offenders.
Second, people with old AP and CE convictions are not subject to registry restrictions. The change in law allows for people previously registered due to CE or AP convictions to request removal from the sex offender registry. This removal process is discussed below. However, because the sex offender registry’s reporting requirements and restrictions only apply to individuals with qualifying “sexual offenses” or “violent sexual offenses” and AP and CE are no longer qualifying offenses, people with such convictions are automatically relieved from those requirements, even before a request for removal is processed.
This means that individuals legally do not have to show up for annual / bi-monthly reporting, do not have to pay registry fees, and can work, live, and recreate where they wish. Failure to follow registry requirements or restrictions cannot legally form the basis for a Violation of the Sex Offender Registry Act charge, as that offense applies only to “offenders,” defined in the act as “sexual offenders” or “violent sexual offenders.” TCA§ 40-39-202 (9), (19), (20), (30), (31); TCA 40-39-208. People with AP or CE convictions are not “offenders” under the relevant part and thus cannot be subject to such charges.
Despite this legal reality, some people are still being charged with registry violations. People who have already been charged should not plead guilty; the charge should be dismissed. If you have any clients who are in this category, please reach out if you would like support and further resources.
Third, people with old AP or CE convictions can request removal from the Sex Offender Registry. Despite the automatic suspension of registry requirements and restrictions, individuals with AP or CE convictions will remain on the public registry unless they file a request for termination under TCA § 20-39-207(a)(4) or (5).
Removal is a relatively simple process. Individuals or their attorneys can send a letter requesting removal to the Tennessee Bureau of Investigation (TBI). The request should include: (1) the phrase “Please consider me for termination from the Tennessee Sex Offender Registry,” (2) the date of the request, (3) the requester’s name, date of birth, and current address. The request must be signed by the requester or their authorized representative. Requests can be emailed to [email protected] or mailed to TBI Sex Offender Registry, 901 R. S. Gass Boulevard, Nashville, TN 37216. All of the requests we are aware of have been granted promptly.
Under a settlement in OUTMemphis v. Lee, No. 23-cv-02670 (W.D.Tn.), individuals who were only required to register due to one or more AP convictions will be approved for removal after submitting a request regardless of whether they have been in “substantial compliance” with the registry requirements. See Doc No. 124-1 at ¶ 8. While this settlement does not apply to people with CE convictions, there is a statutory argument that those individuals also should not be subject to TCA § 20-39-207(b)& (c)’s “substantial compliance” review. Again, if you have a client who falls into this category and you would like resources and support, please let me know.
Removal requests will be granted by TBI regardless of whether the individual previously applied and was told they needed to wait five years to apply again due to substantial non-compliance.
The next time you have a client facing a SOR violation, double check to make sure that the qualifying prior conviction is not one of these HIV-related offenses.