State v. Debaun, No. 3D11-3094 (Fla. Dist. Ct. App. 2013)

This Florida District Court of Appeal decision focuses on whether the term “sexual intercourse,” as used in Florida’s HIV exposure statute, includes acts beyond penile-vaginal penetration. Section 384.24(2) of the Florida statutes makes it a crime for any person with knowledge of their HIV positive status to have sexual intercourse with another person without disclosing their status. In this case, Gary Debaun, the defendant, argued that the statute did not apply to him because he had engaged only in oral sex and penile-anal penetration. The trial court, looking to the decision in L.A.P. v. State where a similar argument was successful, dismissed the charges. The appellate court, however, found that the plain and ordinary meaning of the term “sexual intercourse” is broader, and includes acts such as oral sex and penile-anal penetration. Rather than looking to the specific statute itself, the court turned to the language and legislative intent of Chapter 384 as a whole. The court stated that because Chapter 384 covers sexually transmitted diseases that can by communicated by acts other than vaginal-penile penetration, “it makes no sense to interpret the only act prohibited—sexual intercourse—as including only penetration of the vagina by the penis.” The court also looked to revisions made to Chapter 384 in 1986, finding that certain changes in the language—specifically the substitution of the word “person” for previously gender-specific terms in section 384.24(2)—indicated that the legislature sought “to expand the definition of ‘sexual intercourse’ beyond relationships between only a man and a woman.” For these reasons, the court reversed the dismissal and remanded for reinstatement of the charges against the defendant.

Chief Justice Shepherd filed a dissent in which he noted that while the Florida legislature made significant revisions to Chapter 384 in 1986, the phrase “sexual intercourse” remained unchanged in section 384.24(2). The Chief Justice pointed to Florida cases decided both before and after the 1986 revision, in which all but one define the phrase “sexual intercourse” as “the act of placing a male’s penis inside a female’s vagina.” In the view of the Chief Justice, the appellate court overstepped its bounds when it expanded the definition of “sexual intercourse” in section 384.24(2) to include acts other than the penetration of the female sex organ by the male sex organ.