New York Law School

Art Leonard Observations

Posts Tagged ‘Florida Supreme Court’

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 Supreme Court Rules 4-3 in Favor of Lesbian Co-Parent Egg Donor’s Right to Seek Custody

Posted on: November 7th, 2013 by Art Leonard No Comments

Ruling on a question of first impression for Florida, the state’s Supreme Court split 4-3, finding that a lesbian co-parent who had donated an egg that was fertilized in vitro and implanted in her same-sex partner, could seek custody of the resulting child whom she had parented for the first two years of the child’s life before the couple’s relationship ended.  The court approved a ruling by the 5th District Court of Appeal that a Florida statute that would by its terms block this result would be unconstitutional as applied to this situation, although the court disagreed with the 5th District’s conclusion that the statute didn’t even apply to the case because the co-parent did not intend to “give away” her egg as a “donor.”  The dissent argued that the constitutional issues were not properly before the court and that the co-parent had waived her rights by signing a form consent agreement at the time the in vitro insemination procedure was performed.

The case, D.M.T. v. T.M.H., 2013 Fla. LEXIS 2422, 2013 WL 5942278 (Nov. 7, 2013), achieved a fair degree of notoriety, as the birth mother absconded with the child to Australia and had to be tracked down by detectives in order to serve her with the co-parent’s complaint to initiate the lawsuit.

According to the opinion for the court by Justice Barbara J. Pariente, the parties were “involved in a committed relationship from 1995 until 2006,” living together, acquiring real estate together, and maintaining joint financial accounts.  They decided to have a baby, and after determining that D.M.T. could not produce an egg, they resorted to in vitro fertilization, using an egg harvested from T.M.H. to inseminate from a sperm donor, to be gestated by D.M.T.  They raised their daughter together for two years until the relationship broke down and they separated in May 2006, after which the child lived with D.M.T. under a time-sharing agreement with T.M.H.  After the relationship of the women deteriorated further, D.M.T. disappeared with the child, and was subsequently traced by detectives to Australia.

T.M.H., described by the court as “the biological mother,” filed a petition to establish her parental rights and seek custody.  D.M.T., described as “the birth mother,” moved for summary judgment, relying on a Florida statute that provides that an egg or sperm donor relinquishes all parental rights, “other than the commissioning couple or a father who has executed a preplanned adoption agreement.”  “Commissioning couple” is defined as the intended mother and father of a child.”  The trial court agreed with D.M.T. that the statute compelled granting her summary judgment, but commented, “I do not agree with the current state of the law, but I must uphold it. And, if you appeal this, I hope I’m wrong.”

T.M.H. appealed, and the 5th District Court of Appeal reversed, finding first that the statute did not even apply, because the court did not consider T.M.H. to be a “donor.”  Finding that the parties had intended to raise the child together, the court of appeal concluded that T.M.H. was not “giving away” her egg.  And, alternatively, if the statute were to apply, the court of appeal ruled that this would violate T.M.H.’s constitutional rights, as the biological and intended parent of the child.

This time D.M.T. appealed.  The Florida Supreme Court majority disagreed with the 5th District’s holding that T.M.H. was not a “donor,” but otherwise affirmed the court’s ruling on constitutional grounds.  The court found that the right to procreate is a “fundamental right” under the Florida and U.S. Constitutions.  “Therefore,” wrote Justice Pariente, “the burden falls on the birth mother to demonstrate that application of the assisted reproductive technology statute to deprive the biological mother of her fundamental right to be a parent furthers a compelling governmental interest through the least intrusive means.  This showing has not been made.”

The court recognized that the statute’s purpose was to protect “couples seeking to use assisted reproductive technology to conceive a child from parental rights claims brought by typical third-party providers of the genetic material used in assisted reproductive technology, as well as the State’s corresponding interest in furthering that objective.  This case, however, does not implicate those concerns.  Quite simply, based on the factual situation before us, we do not discern even a legitimate State interest in applying [the statute] to deny T.M.H. her right to be a parent to our daughter.”  The court emphasized that T.M.H.’s rights in this case did not turn solely on her status as a biological mother, but depended also on the parental role she assumed upon the birth of her daughter, thus distinguishing this from a case where an egg or sperm donor who does not form a relationship with a child suddenly surfaces years later trying to assert parental status.

The court also ruled on an alternative argument of equal protection.  “Sexual orientation has not been determined to constitute a protected class and therefore sexual orientation does not provide an independent basis for using heightened scrutiny to review State action that results in unequal treatment of homosexuals,” wrote Pariente,” explaining why the court would apply “a rational basis analysis” to T.M.H.’s equality claim.  “The specific question we confront is whether the classification between heterosexual and same-sex couples drawn by the [statute] bears some rational relationship to a legitimate state purpose.”  D.M.T. relied in part on the Florida Marriage Amendment, which forbids same-sex couples from marrying or having their marriage recognized, to support her argument against T.M.H.’s claim, but the court held that the amendment was irrelevant, since the “commissioning couple” definition in the statute did not require that the intended father and mother be married to each other, unlike a companion statute on gestational surrogacy which limited that procedure to use on behalf of married couples.  The court also rejected D.M.T.’s claim that “recognizing T.M.H.’s parental rights in this case would undermine the State interest in providing certainty to couples using assisted reproductive technology to become parents because it would increase litigation regarding the intentions of individuals providing genetic material.”  The court pointed out that the statute clearly contemplates litigation about whether an unmarried different-sex couple might be considered a “commissioning couple” under the statute, which would require a factual determination of intent.

“We conclude,” wrote Pariente, “that the State does not have a legitimate interest in precluding same-sex couples from being given the same opportunity as heterosexual couples to demonstrate that intent.  Consistent with equal protection, a same-sex couple must be afforded the equivalent chance as a heterosexual couple to establish their intentions in suing assisted reproductive technology to conceive a child.”  Additionally, the court noted a ruling by the 3rd District Court of Appeal in Adoption of X.X.G. which had declared unconstitutional the state’s statutory ban “against a homosexual adopting  child” as “lacking a rational basis,” mentioning with apparent agreement that court’s finding “that gay people and heterosexuals make equally good parents.”  Then-Governor Charlie Crist had decided not to appeal the X.X.G. decision and instead to comply with the court’s order, so the Supreme Court had never issued a definitive ruling on the constitutionality of the statute.  This pronouncement by a majority of the court appears to approve of that ruling, at least by implication.

The court rejected D.M.T.’s argument that the standard consent form that T.M.H. signed at the clinic for the in vitro procedure would serve to waive her rights, asserting that “courts that have considered similar standard informed consents used in reproductive technology have held that waiver provisions like the one referenced by the Fifth District are inapplicable in circumstances like those in this case.  This is because it is uncontested that the biological mother was not an anonymous donor, but rather, that the parties were in a committed relationship where reproductive technology was used – with one woman providing her egg and the other partner bearing the child – so that both women became the child’s parents. . .   Accordingly, the informed consent form signed by the biological mother has nothing to do with a release of parental rights where she was not an anonymous donor, but rather, was a full-fledged partner in the conception and raising of the child.”

Having determined that T.M.H. is a legal parent of the child, the Supreme Court sent the case back to the trial court “to determine, based on the best interests of the child, issues such as parental time-sharing and child support.”

The dissenting opinion, written by Chief Justice Ricky Polston, contested just about every point of the majority decision, arguing that the constitutional issues had not been asserted at the trial level and thus were not preserved for consideration on appeal, that D.M.T. contested T.M.H.’s allegation that the women had intended to raise the child together, and that the statute clearly applied to block T.M.H.’s claim.  The political line-up of the justices is interesting.  Of the four in the majority, two were appointed by Democratic Governor Lawton Chiles and two by Republican Governer Charlie Crist; of the three dissenters, one was appointed by Chiles and two by Crist.

Many amicus briefs were filed with court, mainly in support of T.M.H., including briefs from the ACLU LGBT Rights Project and the ACLU of Florida, Lambda Legal, and the National Center for Lesbian Rights.  Michael B. Jones of Orlando, Florida, represented T.M.H.   Christopher V. Carlyle and Shannon McLin Carlyle of The Villages, Florida, and Robert A. Segal of Melbourne, Florida, represented D.M.T.