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Florida Supreme Court Confronts Definition of “Sexual Intercourse”

Posted on: March 17th, 2017 by Art Leonard No Comments

In Debaun v. State, 2017 Fla. LEXIS 583, 2017 WL 1024526 (March 16), the Florida Supreme Court resolved a conflict between the intermediate appellate courts of the state about how to define “sexual intercourse” for purposes of a statute that makes it a crime for a person who knows he is HIV-positive to fail to disclose that fact before engaging in “sexual intercourse” with another person. Surprisingly, the 2nd District Court of Appeals had ruled in 2011 that the statute applied only to acts of penile-vaginal intercourse and not to cases of sex between gay men.  The 3rd and 5th District Courts of Appeals ruled that gay sex was covered by the statute.  The Court granted review in the 3rd District case to resolve the dispute.

The problem arose from the legislature’s failure to define the term “sexual intercourse” in the statute, presumably because the legislators assumed everybody would know what they meant. In 2011, the legislature decided to update the state’s sex crimes law by replacing the old “Venereal Diseases Act,” which explicitly applied only to sex between a man and a woman, with a new law titled “Control of Sexually Transmissible Disease Act.”   Both of these statutes used the term “sexual intercourse,” but the later statute removed the earlier statute’s explicit application only to mixed-sex couples.

In an early case decided under the new law, the 2nd District court confronted a motion by a gay man to rule that the statute did not apply to him.  Looking for a statutory definition of “sexual intercourse” elsewhere in the Florida penal laws, the court found the incest statute, which defines “sexual intercourse” as “the penetration of the female sex organ by the male sex organ.”  That court concluded that when the legislature defines a phrase in one sex crimes statute, it is appropriate to use that definition in other sex crimes statutes.  Thus, it concluded – rather nonsensically, given the context – that the legislature’s use of the phrase “sexual intercourse” in the sexually-transmitted disease statute “is clearly and unambiguously limited to heterosexual penile-vaginal intercourse,” so the statute did not apply to that gay defendant’s case.

Gary Debaun’s charged violation was particularly egregious. His prospective sex partner had asked him for proof that he was not infected with HIV, and he responded by forging his doctor’s name on a lab test form to certify that he had tested negative for the virus.  He knew he was positive, but did not want to disclose that fact.  Somehow his partner later discovered after having sex with him that Debaun was positive and reported the crime, helping police detectives obtain an admission from Debaun during a “controlled phone call.”

Debaun moved to dismiss resulting the felony charge by citing the 2nd District Court of Appeals ruling.  At the time, this was the only Florida appellate ruling on point, and the trial judge followed it, granting the motion.  The state appealed, and the 3rd District reversed, resorting to dictionary definitions of “sexual intercourse,” which go beyond the traditional heterosexual definition.  The 3rd District also relied on the legislative history of the statute.  If the legislature’s intention was to deter and punish conduct that could spread HIV, it would not make sense to limit the law’s application to heterosexual intercourse.  The 3rd District court concluded that the legislature clearly intended to adopt the broader interpretation.  Debaun appealed this ruling to the Supreme Court.

While Debaun’s appeal was pending, the 5th District Court of Appeals had occasion to rule in a similar case, also reversing a trial court’s dismissal of charges against a gay man, where the trial court had relied on the 2nd District ruling.  That case didn’t get up to the Supreme Court because the defendant did not file a timely notice of appeal.

The Supreme Court, ruling unanimously, agreed with the 3rd District’s approach.  Where the legislature does not spell out the meaning of a term it uses in a statute, Justice Charles Canady wrote for the court, “the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.”  The first place to look for plain meaning, said the court, is the dictionary.

Justice Canady quoted from Webster’s Third New International Dictionary, the American Heritage Dictionary, and Merriam-Webster’s Collegiate Dictionary, all of which define the term to apply more broadly to genital sex acts beyond penile-vaginal intercourse. The court found this broader definition consistent with the legislative intent, in which preventing HIV transmission was the particular spur to replacing the old law with the new one.  Citing statistics from the federal Centers for Disease Control and Prevention website, the court noted that gay and bisexual men “accounted for the majority (67%) of new HIV infections” in 2014, and as of 2013 made up a majority of the people living with HIV infection in the United States.

Thus, adopting the broader interpretation produces a reasonable result, as it “gives full effect to the Legislature’s intent to reduce the incidence of HIV.”

Furthermore, looking to other statutory provisions as a guide to meaning is inappropriate unless “the provision to which a court looks” is “related to the provision lacking a definition.” The court found that the incest provision relied upon by the 2nd District is not so related.  The legislative concern there is with “the prevention of pregnancies which may involve a high risk of abnormal or defective offspring” when the man and the woman are closely related to each other.  That policy concern is not present when both parties to the sexual act are men or are women.

The court also found that the 2nd District had neglected to look at some more recent Florida cases that had defined “sexual intercourse” to apply to two males in other contexts.  And the court rejected application of the “rule of lenity” by which criminal statutes are strictly construed, finding that “the term ‘sexual intercourse’ is commonly understood to broadly refer to various sexual acts – including the sexual act at issue here.  In certain contexts, the term refers specifically – that is, more narrowly – to penile-vaginal intercourse.  But in the context of [the sexually transmitted disease statute], ‘sexual intercourse’ unambiguously denotes sexual conduct that includes acts of oral and anal intercourse,” wrote Justice Canady.

 

Florida Courts Disagree About Whether Sexual Intercourse Can Occur Without a Vagina

Posted on: October 30th, 2013 by Art Leonard No Comments

Is gay sex “sexual intercourse”?  I’m trying to be polite here, so I’ll speak clinically.  When a man takes another man’s penis in his mouth, or inserts his penis into another man’s anus, are they having “sexual intercourse”?  In Florida — and many other states — this remains a serious question of criminal law, even after Lawrence v. Texas decriminalized consensual gay sex, because Florida has a statute making it a crime for somebody who is HIV-infected to have “sexual intercourse” with another person unless they disclose their HIV-status and obtain informed consent from the other person.

It seems that at least two times recently Florida trial judges have dismissed charges against gay men under this statute, relying on a 2011 decision by the 2nd District Court of Appeal that held that when two women engage in fellatio, they are not having “sexual intercourse” because that term, as used in the statute, refers to the penetration of a vagina by a penis.  In a spurious bit of bad reasoning by analogy, these trial judges decided that the gay defendants in their cases could not be guilty under the statute because their penises came nowhere near a vagina during the conduct charged in the indictments against them!  In both cases, the district courts of appeal (5th last May, 3rd today – Oct. 30) reversed, pulling out a dictionary and observing that a modern definition of “sexual intercourse” covers any contact between the genitals of two people.  Both district courts of appeal have certified the question of statutory interpretation to the Florida Supreme Court.  It sounds like the 2nd District court found itself in the same quandary encountered by Queen Victoria during the 19th century, when she was asked for royal assent to a sex crimes statute, and said she couldn’t imagine how two women could have sex with each other.  O ye of little imagination!!

The cases:

L.A.P. v. State, 62 So.3d 693 (Fla. 2nd Dist. Ct. App., 2011).

State v. D.C., 114 So.3d 440 (Fla. 5th Dist. Ct. App., 2013).

State v. Debaun, No. 3D11-3094 (Fla. 3rd Dist. Ct. App., 2013) – Today’s ruling.  Amazingly, today’s ruling featured a dissenting opinion, arguing that precedent is more important in construing statutes than dictionary definitions (or, evidently, common sense).  The appellate panel consisted of two women and one man.  The two women made the majority.  The man — evidently a legal formalist of the old school – dissented.  He wrote: “The temptation to exercise will over judgment in this case is great” and “Courts do legislatures no favors when they do their work for them.”  He argues that since the conduct in this case – oral and anal sex between men – does not clearly come within the traditional definition of “sexual intercourse” under existing Florida appellate precedents, the criminal defendant is entitled to the benefit of the “rule of lenity,” “whether we wish it to or not.”

There is a strong policy argument to be made that statutes making it a crime for HIV-positive people to have sex, imposing disclosure requirements on those who know they are infected, paint with too broad a brush and actually undermine good public health policy by incentivizing people to avoid finding out their HIV-status.  But as long as the statutes are on the books, one hopes that judges will not get caught up in legal formalism and construe them without any reference to the real world.

 

Florida Appellate Courts Disagree About Whether “Sexual Intercourse” Includes Gay Sex

Posted on: May 31st, 2013 by Art Leonard No Comments
Does “sexual intercourse,” as the term is used in Florida Stat. 384.24(2) and 384.34(5), include anal or oral intercourse between men?  The sections in question make it a crime for a person who knows he is infected with HIV to engage in “sexual intercourse” with another person without disclosing this fact.  The 2nd and 5th Florida District Courts of Appeal disagree, and the 5th District has certified the question to the Florida Supreme Court to resolve the conflict, in a ruling announced on May 31 in State of Florida v. D.C., 2013 WL 2359490. 

The State filed charges against D.C., a gay HIV-positive man, accusing him of violating the cited statutes.  D.C. filed a motion to dismiss, contending that the term “sexual intercourse” used in those statutes referred to vaginal intercourse involving a man and a woman, and thus the statute did not apply to the activity for which he was charged.   Marion County Circuit Judge Hale R. Stancil, finding himself bound by the only Florida appellate decision on point, L.A.P. v. State, 62 So.3d 693 (Fla. 2d Dist. Ct. App. 2011), granted the motion to dismiss, and the prosecutor appealed to the 5th District Court of Appeal.  In L.A.P., the trial judge had refused to dismiss the charges, and the gay defendant appealed, convincing the 2nd District Court of Appeal that the term “sexual intercourse,” as used without express definition in the statute, meant exclusively sexual intercourse between a man and a woman involving penile insertion in a vagina. 

The lucky defendant in the 2nd District case was obviously channeling former President Bill Clinton, when he asserted “I did not have sex with that woman” in reference to allegations that he engaged in oral sex with Monica Lewinsky!  At the time, the press was full of comments about how many people did not consider oral sex to be actual “sex,” because it could not lead to pregnancy.  By definition, then many people do not consider gay sex to be real “sex.”  The same contention has arisen in litigation about marriage equality, opponents arguing that it is impossible for a same-sex marriage to be “consummated” because “sexual intercourse” as traditionally understood is necessary to consummate a marriage.

D.C. encountered a different response from the 5th District Court of Appeal, in an opinion for the unanimous three-judge panel by Judge William D. Palmer.  “Both parties maintain that the Legislature’s intent concerning the meaning of the term ‘sexual intercourse’ is clear from the unambiguous language of the statute and that the statute must be given its plain and obvious meaning,” he wrote, asserting that legislative intent “is the polestar that guides statutory interpretation” and that when the statutory language is “clear and unambiguous,” there is “no occasion for resorting to the rules of statutory interpretation and construction,” because “the statute must be given its plain and obvious meaning.”  Under Florida Supreme Court precedents, in such situations courts may have recourse to published dictionaries of the English language to determine the meaning of “clear and unambiguous” statutory language. 

Judge Palmer then referred to definitions of “sexual intercourse” in four published hard-copy dictionaries, ranging in date from 1976 through 2012, as well as two on-line dictionaries presumably consulted shortly before the opinion was released.  All of them broadly defined sexual intercourse in ways that would extend beyond heterosexual vaginal intercourse to include other sexual contact involving penetration.  The earliest dictionary cited, Webster’s Third New International Dictionary, gave the traditional definition of vaginal intercourse as well as “intercourse involving genital contact between individuals other than penetration of the vagina by the penis.”  More recent dictionaries, reflecting the more explicit language that has entered public discourse since then, largely in response to the AIDS epidemic one suspects, specifically mention “insertion of the penis into the anus or mouth” as a form of sexual intercourse.

Beyond the dictionary definitions, and tacitly abandoning the idea that consultation of legislative history is not necessary to interpret “clear and unambiguous” statutory language, the court cut to the chase and noted that the provisions in question, which specifically refer to transmission of HIV, were obviously enacted with the purpose of outlawing sexual contact that could transmit that virus from an infected person to an uninfected one.  “The defendant’s interpretation of the statute as being limited to heterosexual vaginal sex runs counter to the Legislature’s intent to efficiently and effectively reduce the incidence of sexually transmitted diseases in Florida,” concluded Palmer. 

Thus, the court reversed and remanded the decision for further consistent proceedings in the trial court, and certified to the Florida Supreme Court the conflict of interpretation.  Without getting into the issue of whether criminal statutes, even as correctly construed, are an “efficient and effective” way to reduce the incidence of HIV transmission, a highly debatable contention, the 5th District’s decision appears on its face to adopt a more logical construction of the statute than the 2nd District’s construction.  It is hard to accept the proposition that a term that receives multiple definitions in the dictionaries and that has multiple meanings among members of the public can be said to be “clear and unambiguous,” when two appellate panels disagree as to its meaning.  By definition, a term that has multiple possible meanings in popular discourse cannot be interpreted without recourse to contextual evidence of legislative intent, and this very case could be Exhibit A for the proposition that the idea of “clear and unambiguous language” is frequently delusional, given the malleability of language as it evolves in usage.  D.C.’s contention as to the common understanding of the term would probably have been correct, as a matter of common usage among a large portion of the public a generation ago., but is no longer in an age of openly-gay celebrities and sexually explicit discourse in mass media.