In Complicated Case, Florida Supreme Court Must Decide What 'Sexual Intercourse' Really Is
By David Ovalle
In Florida, and almost three dozen other states, it is a crime to have intercourse without disclosing a sexually transmitted disease.
So prosecutors thought they had a solid case when they charged a Manatee County woman who failed to tell her female partner that she was HIV-positive. A Tampa appeals court, however, threw out the case, ruling that "sexual intercourse" could take place only with a penis and a vagina -- in other words, between a man and a woman.
But last month, a South Florida appeals court issued a conflicting opinion, upholding charges against a Key West man whom police had accused of lying about being HIV-positive to his male partner. The ruling more broadly defined intercourse, finding that it did not require opposite genders or specific body parts.
The Florida Supreme Court is likely to end up resolving the clashing opinions, which are being closely monitored by gay-rights advocates.
On the one hand, they support legal rulings that convey equal status to same-sex relations -- but they also oppose the HIV disclosure law, arguing that the long-controversial statute stigmatizes people infected with the virus.
"It's a progressive ruling, but the law itself is draconian," said Norm Kent, a South Florida activist and criminal-defense lawyer who publishes the South Florida Gay News.
Scott Schoettes, the HIV Project Director for the gay-rights group Lambda Legal, said it was hard to see "a silver lining" in a disclosure law he called unjust.
"It's nice to have courts recognize relations between two men," he said. "But it would be nice to recognize granting us our rights in an affirmative sense, not just when it comes to criminalizing our sex lives."
In Florida, it is a third-degree felony -- punishable by up to five years in prison -- for a person who knows he or she is HIV-positive to have sex with someone else without informing them. The law came into effect as part of the "Control of Sexually Transmissible Disease Act" that Florida lawmakers passed in 1986 as fears about HIV, which can lead to AIDS, were growing nationwide.
The disclosure law also covers other sexually transmitted diseases, such as herpes, gonorrhea and chlamydia -- but HIV is the only one that carries a felony charge. Thirty-four U.S. states and territories have passed similar laws.
Detractors are widespread. In February, President Barack Obama's Advisory Council on HIV/AIDS issued a resolution calling criminalization of HIV an "unjust, bad public health policy" that "is fueling the epidemic rather than reducing it."
The council pushed for states to repeal or revise the laws.
Critics say the laws ignore scientific data that show HIV is rarely transmitted through oral sex or digital penetration, and that the risk is often considerably low even in cases of vaginal or anal sex.
"All of these laws are just based upon misconceptions about how easy it is to transmit HIV. It's not that easy," said Schoettes, a lawyer who believes the laws should be altered to include proving "intent" and that a victim actually contracted the virus.
The law came under scrutiny in 2010, when the Second District Court of Appeal in Tampa took up the case of an HIV-positive Manatee County woman charged with having oral and digital-penetration sex with another woman.
The three-judge panel threw out the charge, ruling sexual intercourse was "the penetration of the female sex organ with the male sex organ."
The reason: Florida lawmakers never specifically defined what constitutes "sexual intercourse." So the judges, in a unanimous ruling, fell back on another Florida law -- one governing incest -- to define the meaning of the term. Prosecutors in Tampa chose not to appeal the decision.
But the issue was not settled.
Fast-forward to 2011, when Charles Marlin of Key West met Gary Debaun. According to court records, Marlin had heard rumors of Debaun's being HIV-positive, so he asked for proof he was uninfected before they had sex.
Debaun, 62, produced a lab report showing that he was HIV-negative, prosecutors say.
The two moved in together and began having sex. But then Marlin found "HIV related material" on Debaun's computer, according to an arrest warrant.
Marlin showed the lab report to the doctor's office, court records show, where the staff told him it had been forged. Debaun later wrote an apology letter. And with detectives recording the conversation, Marlin called Debaun, who admitted he had misled his partner, according to the warrant.
Monroe County prosecutors charged Debaun under the HIV-disclosure law.
In October 2011, Debaun's defense attorney asked Monroe County Circuit Judge Wayne Miller to dismiss the case, citing the Tampa ruling involving the two women. He did.
This time, prosecutors appealed the decision. On Oct. 30, the Third District Court of Appeal -- which covers Miami-Dade and Monroe counties -- overturned Miller's decision. Judges said the point of the law was to curb the spread of sexually transmitted diseases, especially when many are spread by "sexual contact other than vaginal penetration by a penis."
"It makes no sense to interpret the only act prohibited -- sexual intercourse -- as including only penetration of the vagina by the penis," Judge Linda Ann Wells wrote in the 2-1 decision. The judges pointedly said that the HIV law "applies to other behavior, including that between two men."
The felony charge was reinstated against Debaun.
"We fully intend on prosecuting Mr. Debaun for his criminal acts," said Monroe prosecutor Colleen Dunne.
The Miami-Monroe appellate court was not the only one to broaden the definition.
In May, as judges in South Florida were considering the Debaun case, an appellate court in Daytona Beach weighed in with a ruling in a third case, finding in a unanimous decision that the "plain and ordinary" meaning of sexual intercourse includes "vaginal, anal and oral intercourse between persons, regardless of their gender."
Debaun's lawyer, Alan Eckstein, said no decision has been made on whether to appeal.
Ohio State University law professor Marc Spindelman, who recently wrote an article on gay rights legal issues for the Columbia Journal of Gender and Law, called the HIV-disclosure law "no mere symbolic legal issue."
"The case involves intensely real and practical consequences for people's lives," Spindelman said. "Practical legal consequences hinge on whether lesbians and gay men and their relations and activities -- wanted or not -- receive equal or unequal treatment under the law."
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