In Florida, it is a crime for anyone infected with the human immunodeficiency virus to have sexual intercourse with another person unless they first disclose the infection and obtain that person’s consent. HIV can spread through a range of sexual activities. Until recently, however, some Florida courts used a very limited definition of “sexual intercourse” that only applied to heterosexual encounters that involve contact between male and female sexual organs. A recent decision by the Florida Supreme Court-Debaun v. State-clarified the definition so that it now applies to all types of sexual encounters.
The criminal HIV statute does not provide a definition of “sexual intercourse.” Some earlier decisions had borrowed one from criminal incest laws, which only applies to heterosexual encounters where there is contact between both sexual organs. In the Debaun case, a man in a same-sex relationship was accused of forging his doctor’s signature on a lab-report indicating he was HIV negative when he was, in fact, HIV positive. The trial court dismissed his charges, because the sexual encounter at issue was between two men.
In a unanimous opinion authored by Justice Canady, the Florida Supreme Court disagreed and reinstated the criminal charges. It noted that the purpose of the statute was to prevent the spread of HIV, so it would make little sense to criminalize only a subset of sexual encounters, particularly when CDC statistics show that the disease disproportionately impacts gay and bisexual men. In line with this logic, the court found that the definition of sexual intercourse in incest cases was improper, because the primary drive behind that statute was to prevent pregnancies that could result in children with genetic deformities.
The Debaun decision will greatly expand the reach of Florida’s HIV criminal laws in parts of the state that used the incest definition of sexual intercourse. The case also poses an interesting issue that can arise in when interpreting criminal statutes. Normally, under what is known as the rule of lenity, all ambiguities in a statute must be resolved in a criminal defendant’s favor. However, the law was being interpreted in such a way that all gay (and many straight) people unwittingly inflicted HIV were arbitrarily not considered victims of a crime.