The PJ Tatler

Court to Decide What Is 'Sexual Intercourse'

Florida’s Supreme Court is getting ready to answer the question “What is sexual intercourse?”  The question arises in the middle of a case dealing with a 1986 law requiring HIV positive individuals to disclose that status before engaging in “sexual intercourse.”

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 details of the case involve a gay man who was charged with a felony after he failed to disclose that he was HIV positive to his male partner.

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.

So because the “sex” wasn’t “reproductive” in nature, the defense is arguing it was not sexual intercourse. Don’t make me spell this out for you.

Florida law seems to indicate that one must be engaging in traditional male/female mutual genital-based 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.”

The defendant is trying to use a technicality to get out of failing to disclose he was about to engage in a life-threatening act, that “Debaun didn’t violate the law as written.” What he did do was pretty disgusting. “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.”

Ellison argued to the court that because Florida law uses the term “sexual intercourse” rather than “sexual activity,” Debaun is in the clear. But one of the judges wasn’t having that.

“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.

But Ellison argued the Florida Legislature has had plenty of time to clarify what sexual intercourse means.

“It’s always been defined as between a man and a woman,” he told the justices. “In all of that time, the Legislature has never expressed any intent to give it a more expansive meaning than it has always had, both in this court and elsewhere in this entire criminal code.”

PJ Media will keep you updated on the latest development on this crucial question.