What is sexual intercourse? That’s for the Florida Supreme Court to decide

What does “sexual intercourse” mean in Florida?

The state’s Supreme Court justices are pondering the question in a case involving a 1986 law requiring HIV-positive people to reveal their infection before having “sexual intercourse.”

A defense lawyer told the court last week that Florida’s laws have always used the term to describe heterosexual sex and not any other sexual activity by either gender.

The case involves a man charged with a felony after failing to tell his male sex partner that he carries the human immunodeficiency virus. His public defender, Brian Ellison, is simply trying to get the charge dropped, but told The Associated Press outside court that the same defense could apply to HIV-positive heterosexuals who engage in anything other than traditional sex.

“In the history of Florida law the specific term, sexual intercourse has always been interpreted to mean reproductive sexual conduct,” Ellison said. “It’s not the way that I’d want to define it, maybe — maybe not the way you’d want to define it —  but that’s the way it’s always been in Florida law.”

Ellison didn’t try to persuade the justices that his client, Gary Debaun, did nothing wrong; instead, he argued that Debaun didn’t violate the law as written.

The record shows that Debaun’s partner asked him to take an HIV test, and that Debaun, who knew that he was living with HIV, gave the man fake test results showing he was free of the virus. A lower court threw out the charge, but it was reinstated on appeal.

A number of states legally require people with HIV to disclose the infection to sex partners, but Ellison told the justices that other states’ laws use term “sexual activity” or specifically spell out sexual acts, rather than use Florida’s narrow language.

“But would you agree that when that statute was enacted, it was the intent to make sure that anybody that was going to have any kind of sexual activity that could transmit AIDS advise their partner?” asked Justice Barbara Pariente.

That’s exactly the point Assistant Attorney General Jeffrey Geldens made in arguing that the charge should stand. He noted that the Legislature passed other laws at the time aimed at curbing the spread of HIV, including education programs on how to prevent its spread through sexual activity.

“It’s clear that the statute was intended to address the harms that are at issue in this case,” Geldens said. “That’s exactly what the Legislature intended to prevent, and they used the language of sexual intercourse because they wanted to do that.”

But if Florida lawmakers wanted to spell out exactly what it means by sexual intercourse, it’s had nearly a century to do so, said Ellison. The term has been used in state laws since 1919, when Florida first required disclosures to prevent the spread of syphilis, gonorrhea and other venereal diseases, he said.

“It’s always been defined as between a man and a woman,” he told the justices. “In all of that time, the Legislature has never expressed any intent to give it a more expansive meaning than it has always had, both in this court and elsewhere in this entire criminal code.”

Pariente agreed that lawmakers have had ample opportunity to clarify the law.

“This could be solved easily by the Legislature,” she said.