Florida Supreme Court asked to define sexual intercourse in HIV case

Florida Supreme Court in Tallahassee. BRENDAN FARRINGTON [ap]

TALLAHASSEE, Fla. — What does “sexual intercourse” mean in Florida?

The state’s Supreme Court justices are pondering the question in a case that threatens to weaken a 1986 law requiring HIV-positive people to reveal their infection before having “sexual intercourse.”

Florida Supreme Court in Tallahassee.

Florida Supreme Court in Tallahassee.

A defense lawyer told the court Wednesday that Florida’s laws have always used the term to describe traditional sex between a man and a woman, and not any other sexual activity by either gender.

The case involves a man charged with a felony after failing to tell his male sex partner that he carries the human immunodeficiency virus. His public defender, Brian Ellison, is simply trying to get the charge dropped, but told The Associated Press outside court that the same defense could apply to HIV-positive heterosexuals who engage in anything other than traditional sex.

“In the history of Florida law the specific term, sexual intercourse has always been interpreted to mean reproductive sexual conduct,” Ellison said. “It’s not the way that I’d want to define it, maybe — maybe not the way you’d want to define it — but that’s the way it’s always been in Florida law.”

Ellison didn’t try to persuade the justices that his client, Gary Debaun, did nothing wrong; instead, he argued that Debaun didn’t violate the law as written.

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The record shows that Debaun’s partner asked him to take an HIV test, and that Debaun, who knew that he was infected, gave him fake test results showing he was free of the virus that causes AIDS. A lower court threw out the charge, but it was reinstated on appeal.

Most states legally require people with HIV to disclose the infection to sex partners, but Ellison told the justices that other states’ laws use term “sexual activity” or specifically spell out sexual acts, rather than use Florida’s narrow language.

“But would you agree that when that statute was enacted, it was the intent to make sure that anybody that was going to have any kind of sexual activity that could transmit AIDS advise their partner?” asked Justice Barbara Pariente.

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