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Florida Supreme Court Defines “Sexual Intercourse”

Four Florida state appellate courts tried to define “sexual intercourse” and at least one of them got it wrong.  More confusingly, would you be surprised to learn that Florida statutes defines “sexual intercourse” in more more than one way?

Under the Control of Sexually Transmitted Disease Act, there exists Florida Statute 384.24(2) which criminalizes “sexual intercourse” by someone who is HIV infected, knows it is transmittable, and doesn’t tell his/her partner.  It’s a third degree felony.  The Legislature’s intent, of course, is to curtail the transmission of HIV.  But “sexual intercourse” is not defined.

Florida’s Second District looked at the statute, compared it to the definition provided in another statute which prohibits incest, and concluded that “sexual intercourse” referred to penile-vaginal sex only.  The incest statute, incidentally, is in a completely different statute and the Legislature’s intent there was to prevent high risk pregnancy.

The Third and Fifth District addressed the same issue and concluded, by looking at several dictionaries, that “sexual intercourse” meant more than just penile-vaginal sex.

In March 2017, the Florida Supreme Court took up the issue and agreed that the definition of sexual intercourse under this statute was broader than just penile-vaginal sex.  The Court did not specifically fix a definition other than to say, for this statute, it meant “sexual conduct that includes acts of oral and anal intercourse.”  From a Legislative-intent purpose, the Court held that it would be absurd to limit the definition to just penile-vaginal sex since “HIV-positive individuals could engage in homosexual activity with impunity…”

The final word on the issue can be found in Gary G. Debaun v. Florida.

Image credit: Wikimedia Commons

Christopher B. Hopkins

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