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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.