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Florida Appeals Panels Disagree If Gay Sex is “Intercourse”

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Does “sexual intercourse” — as the term is used in provisions of Florida law that make it a crime for a person who knows he is infected with HIV to engage in it without disclosing this fact — include anal or oral intercourse between men? Two Florida District Courts of Appeal disagree on this question, and on May 31, the Fifth District certified the question to the State Supreme Court for resolution.

The state filed charges against D.C., an HIV-positive gay man, accusing him of engaging in intercourse without notifying his partner, though the Fifth District ruling does not clarify whether the case involved unprotected sex or even whether it was anal or oral sex. The defendant filed a motion to dismiss, contending that the term “sexual intercourse” as used in the law referred only to vaginal intercourse involving a man and a woman.

State Supreme Court asked to resolve conflict in cases involving non-disclosure of HIV status

Marion County Circuit Judge Hale R. Stancil, finding himself bound by the only Florida appellate decision on point, out of the Second District, granted the motion to dismiss, and the prosecutor appealed to the Fifth District Court of Appeal. In the earlier Second District case, the trial judge had refused to dismiss the charges, and the gay defendant appealed, convincing the Second District Court of Appeal that the term “sexual intercourse,” as used without specific definition in the statute, meant exclusively conduct involving penile penetration of a vagina.

When Bill Clinton asserted, “I did not have sex with that woman” in response to allegations he engaged in oral sex with Monica Lewinsky, the press was full of comments from people who did not consider oral sex to be actual “sex” because it could not lead to pregnancy. By definition, then, many people do not consider gay sex to be “real sex.” In a similar vein, in some marriage equality litigation, opponents have argued that it is impossible for a same-sex marriage to be “consummated” because “sexual intercourse” as traditionally understood is necessary for that.

D.C. encountered a different response from the Fifth District Court of Appeal, in an opinion for the unanimous three-judge panel by Judge William D. Palmer.

“Both parties maintain that the Legislature’s intent concerning the meaning of the term ‘sexual intercourse’ is clear from the unambiguous language of the statute and that the statute must be given its plain and obvious meaning,” he wrote. When statutory language is “clear and unambiguous,” he said, there is “no occasion for resorting to the rules of statutory interpretation and constructi­on.”

Under Florida Supreme Court precedents, courts may consult published dictionaries of the English language to determine the meaning of “clear and unambiguous” statutory language.

In reviewing four print dictionaries published between 1976 and 2012, plus two online dictionaries, Palmer found that all of them broadly defined sexual intercourse in ways that would extend beyond heterosexual vaginal intercourse to include other sexual contact involving penetration. The earliest source cited, “Webster’s Third New International Dictionary,” gave the traditional definition of vaginal intercourse as well as “intercourse involving genital contact between individuals other than penetration of the vagina by the penis.” More recent dictionaries specifically mentioned “insertion of the penis into the anus or mouth” as a form of sexual intercourse.

Palmer, however, went beyond the insights the dictionaries offered about the “clear and unambiguous” language in the statute’s provisions and, in fact, looked back to the legislative intent behind their enactment. The provisions in question, which specifically refer to transmission of HIV, were obviously adopted with the purpose of outlawing sexual contact that could transmit the virus from an infected person to an uninfected one.

“The defendant’s interpretation of the statute as being limited to heterosexual vaginal sex runs counter to the Legislature’s intent to efficiently and effectively reduce the incidence of sexually transmitted diseases in Florida,” Palmer concluded.

As a result, the appellate panel reversed the trial court decision and sent the case back to Judge Stancil. It also certified to the Florida Supreme Court the conflict of interpretation between its finding and the earlier one from the Second District.

Palmer’s ruling appears on its face to adopt a more logical construction of the statute than the Second District’s. Given that dictionaries offer multiple definitions of “sexual intercourse” and that two appellate panels disagreed about its meaning, it’s hard to accept the proposition that the language in the statute was in fact “clear and unambiguous,” without any recourse to the context surrounding legislative intent.

What is left unaddressed in this controversy is an issue that is undoubtedly more important for society to consider — whether criminal statutes, even as correctly construed, are an “efficient and effective” way to reduce the incidence of HIV transmission. The criminalization of HIV status has often had profoundly negative consequences on the lives of those living with the virus, as longtime AIDS activist Sean Strub’s Sero Project has documented, but don’t take any bets on when the Florida Supreme Court might tackle a question like that.

Updated 5:17 pm, July 20, 2018
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