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!!
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.