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After 2 years, Florida court defines sexual intercourse

Posted March 16

— It took two years and three dictionaries, but the Florida Supreme Court finally determined Thursday that "sexual intercourse" isn't just between a man and a woman.

The question arose during a case in which a man was charged with a third-degree felony for failing to reveal to his male partner that he was HIV-positive. His lawyer argued before the state's high court in February 2015 that Florida laws were so narrowly defined that "sexual intercourse" didn't apply to sexual activity between same-sex partners or any activity beyond traditional sex.

The court rejected that argument, ruling that the Legislature's goal was clearly to reduce the spread of HIV when it enacted the 1986 law, even if it didn't clearly spell out what it mean by "sexual intercourse."

"Because the Legislature did not define 'sexual intercourse' ... we look to the dictionary in order to ascertain the plain and ordinary meaning of the term," the court wrote in the unanimous decision before quoting three dictionaries. The plain meaning of sexual intercourse clearly encompasses "acts beyond penile-vaginal intercourse," the court said.

The court wrote that gay and bisexual men are disproportionately affected by the spread of HIV and said the disclosure law wasn't meant to be restricted to sex between men and women.

The case was brought after Gary Debaun was charged in 2011 with not disclosing that he was HIV-positive before having sex with his partner. Court records show Debaun's partner asked him to take an HIV test, and that Debaun, who knew he was infected, provided fake results showing he was free of the virus that causes AIDS.

A lower court threw out the charge, but it was reinstated upon appeal. The case will now go back to the trial court.

"It's been a long time coming," said Assistant State Attorney Colleen Dunn, who originally brought the charges against Debaun in Key West nearly six years ago. "When they created this statute, they never thought that a definition of sexual intercourse would come into such play."

In Florida, it is a separate offense to transmit HIV if a person aware of their infection doesn't reveal it before sexual intercourse. Dunn said Debaun hasn't been charged with infecting his partner.

Debaun's attorney, Brian Ellison, wouldn't comment on the specifics of the ruling.

"We had our day in court and the court heard our arguments and the court has spoken," he said.

1 Comment

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  • Norman Lewis Mar 17, 11:45 p.m.
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    This is another example of how lawyers and "legalspeak" have messed up this country. What other group would spend so much time, effort and more importantly, taxpayers money, to define a term anyone with common sense could clarify with a simple phrase? "If you insert your genital "member" into any orifice of anyone else or allow someone else to do the same to you, you had intercourse." There, took 10 seconds and was free. Sorry to all the lawyers that made hundreds of thousands off the taxpayers defining the term and were looking forward to doing so in other states. Being HIV positive and having sexual contact with anyone without informing them beforehand, is assault with a deadly weapon at a minimum, or should be.