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.