The Florida supreme court heard arguments on Wednesday over the definition of sexual intercourse as it weighs a challenge to a state law that requires people living with HIV to inform partners of their infection.
The case stems from charges filed in 2011 against Gary Debaun, who was accused of not informing his male partner of his HIV status before they engaged in “fellatio and penile-anal penetration”.
Under Florida law, an HIV-positive individual must disclose their status to a potential partner before “sexual intercourse”. Debaun’s case was dismissed by a county circuit court judge who found that Florida law defines “sexual intercourse” as between men and women.
The state appealed against the ruling, arguing that the term did not apply exclusively to penile-vaginal penetration, and included all sexual acts that could result in the transmission of HIV to a partner. The appeals court then overturned that ruling but asked the state’s supreme court to weigh in and resolve the debate.
In a court brief, the state said the intent of the law was clear, and that it was implausible to suggest the legislature passed a law aimed at protecting Floridians from unwittingly exposing themselves to HIV without intending for a more inclusive definition of the term.
“The purpose of the statute was to criminalize knowingly exposing another person to HIV and Aids through sexual intercourse without first advising that person,’’ the attorney general’s office wrote in an August brief to the court.
“The statute applies to anyone, male or female, who may expose their partner through sexual intercourse, even if that sexual intercourse includes an act other than the penetration of the female sexual organ by the male sexual organ. It is not the sexual act that the legislature meant to criminalize, but knowingly exposing one’s sex partners to HIV and Aids.”
Debaun’s attorney, however, argued in a May brief that sexual intercourse is consistently defined throughout Florida law as between a man and a woman, regardless of legislative intent.
“The Florida legislature and this court have always identified penile-vaginal union as ‘sexual intercourse’ and distinguished it from all other sexual contact,” Brian Lee Ellison, an assistant public defender representing Debaun, wrote in a May court briefing.
“Neither this court, nor the legislature has ever said otherwise. The plain meaning of the term is therefore clear and unambiguous.”
