AP Photo / Mark Foley

Florida Supreme Court asked to define 'sexual intercourse' in HIV case

Law requiring persons with HIV to inform partners was challenged by gay man charged who argued law provided no clarity

The Florida Supreme Court will hear arguments on Wednesday on the definition of sexual intercourse in a test of a law requiring HIV-positive people to tell partners of their status.

The case arose in Key West where Gary Debaun was charged in 2011 with falsely telling a man he did not have the virus before they engaged in sex acts. Monroe County Circuit Judge Wayne Miller dismissed the case, saying state law defined "sexual intercourse" as between men and women.

The state appealed, arguing that the 1986 law Debaun violated, which requires HIV-infected people to inform their partners, was intended to cover all sex acts, both homosexual and heterosexual, even if it did not precisely define the nature of sexual intercourse.

In large part that was because the law was written in gender-neutral language, the state argued.

A district appeals court overturned Miller's ruling and asked the state’s Supreme Court to intervene.

"The Florida Legislature and this court have always identified penile-vaginal union as 'sexual intercourse' and distinguished it from all other sexual contact," assistant public defender Brian Lee Ellison, representing Debaun, said in his brief to the high court.

"The plain meaning of the term is therefore clear and unambiguous," he added, stating that, according to Florida law, sexual intercourse "does not refer to homosexual acts or oral sex."

Assistant Attorney General Joanne Diez wrote in her brief that "the lack of a definition of 'sexual intercourse' ... did not render the statute ambiguous or unclear."

Instead, the law sought to protect citizens "from a public health threat," the state maintained.

After hearing arguments, the seven justices usually take months to issue rulings.

The court has dealt with sexual definitions before, in 1971 striking down a 1868 statute that criminalized "the abominable and detestable crime against nature with either mankind or with beast" in the case of two gay man who faced up to 20 years in jail.


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