When Sex Is a Crime

After a flurry of legal filings, a complicated case pending before the Florida Supreme Court could have a major impact on laws that are used, in part, to criminalize sex involving HIV-positive people, though any ruling would not address the criminalization law itself.

Initially, in 2011, a state-level court dismissed a charge that Florida resident Gary Debaun had “uninformed HIV-infected sexual intercourse” with his former partner Charles Marlin. But an appeals court disagreed on the definition of “intercourse,” and now the state’s Supreme Court will weigh in on the case.

Marlin had alleged that Debaun lied to him about his HIV status, going so far as to falsify lab reports and forge a doctor’s note saying Debaun was HIV-negative. After engaging in several sex acts, including oral and anal sex, Marlin said he learned that Debaun was HIV-positive, and the state subsequently charged Debaun under a Florida law that makes it a crime to not inform a potential partner of one’s HIV-positive status. In 1986, Florida was among four states that became the first to enact laws requiring HIV-positive individuals to disclose their status and seek consent before engaging in “sexual intercourse” with a partner. Violation of the law originally brought a misdemeanor charge, but in 1993 it became a third-degree felony.

The trial court that first heard Debaun’s case dismissed the charge, relying on a similar earlier case involving two women in which it was determined that the Florida law, as written, applied only to sex that involves a penis entering a vagina. Thus, the court reasoned, any sex act between two men could not meet the statutory definition of “sexual intercourse” required for prosecution under the law. But the state appealed that decision, and in October 2013, Florida’s Third District Court of Appeal overturned it. The intention of the law, the appeals court reasoned, was to criminalize anyone who purposefully hid his or her positive status from a potential partner, regardless of gender or type of sex act.

“We need not determine whether the term ‘sexual intercourse’…encompasses any and all forms of sexual activities,” the Third District wrote in its decision. “We do find that the term encompasses more than just penetration of the female sex organ by the male sex organ and includes the acts at issue here (fellatio and penile-anal penetration).”

The appeals court cited the definition of “sexual intercourse” employed by Merriam-Webster’s Third New International Dictionary, which included not only penis-in-vagina sex but also “intercourse involving genital contact between individuals other than the penetration of the vagina by the penis.”

Attorneys representing Debaun then appealed that court’s decision, prompting a flurry of legal filings from both sides debating the precise meaning of the statute under which Debaun was charged. Early in 2014 the Florida Supreme Court agreed to consider the case, though a series of extensions means the state’s high court has not yet heard arguments in the case. (At press time, oral arguments were scheduled for February 4, though there’s no set timeline for a decision.)

However the case is decided, it could have a lasting impact on who can be charged under Florida’s HIV criminalization laws, experts say. In effect, the decision could “redefine how Floridians legally define sexual intercourse,” notes The Citizen, a Key West newspaper. If the state’s high court determines that “sexual intercourse” involves any type of sexual act between individuals, including oral sex, any HIV-positive person could face criminal charges if it’s alleged they did not disclose their status prior to sex.

On the other hand, if the Supreme Court decides to side with the trial court and interpret the phrase in its most limited sense, Debaun’s case could set a precedent that would make it much harder to charge HIV-positive people who have anal or oral sex, whether with a partner of the same or different sex. Alternately, the court could arrive at a novel definition of “sexual intercourse” that includes some sex acts but not all. Regardless of what the court decides, the decision will be legally binding statewide.

Florida is just one of 34 states and territories that still have HIV-specific laws on the books. (Some that don’t, such as Texas, have still prosecuted people with HIV under more general laws.) Like Florida’s, most of these state laws make it a crime to have sex without disclosing your positive status to your partner, even if you use a condom, have low- or no-risk activity, or have an undetectable viral load and are therefore unlikely to transmit HIV. Most scientists, researchers, and health care workers have come out against such laws in recent years, and Iowa became the first state to undo its own law last summer.

Unfortunately, however, none of the lengthy and involved legal proceedings in the Debaun case have sought to dismantle Florida’s HIV criminalization law.