Florida Supreme Court to Decide Whether Gay Sex Counts as Sex

Not an accurate depiction of gay sex.
Not an accurate depiction of gay sex.
Photo by Jastrow | WikiCommons, CC2.0

Under Florida law, sex is technically considered sex only when it involves a consenting p in a consenting v. The only legal definition the state has for "sexual intercourse" goes on to specify that "emission of semen is not required" -- in case you were wondering. Oral and anal sex, regardless of the genders involved, is referred to as "deviate sexual intercourse," because Florida law is prudish like that.

Well, this year the Florida Supreme Court will seek to clarify whether sex between two men is legally considered sex.

See also: I Have HIV. But I'm not telling you, babe.

How exactly does that question come before the state's highest court?

Well, in 2011, Gary Debaun, an HIV-positive Key West resident, was charged with a crime after he had oral and anal sex with a man and failed to disclose his status. In the state it's a third-degree felony for an HIV-positive person to have "sexual intercourse" without informing one's partner. It's punishable by up to five years in jail.

Debaun's public defender argued that because the incident technically didn't meet the definition of sexual intercourse, Debaun did no wrong. Monroe County Circuit Judge Wayne Miller originally dismissed the case, but the state intervened. A district court overturned Miller's decision and asked the Supreme Court to ultimately clarify the matter.

The Florida Supreme Court heard arguments in the case last week.

In a brief filed last May, Debaun's attorney argued that time and time again, Florida law, courts, and the legislature have defined "sexual intercourse" as straight sex only. However, that definition is found only in the statutes in a law forbidding incest, but that's technically the only legal definition the state has provided for the term.

Indeed, the brief cites a 2011 decision that threw out similar charges against an HIV-positive woman who engaged in oral sex and mutual masturbation with another woman without informing her of her status. Though the judge in that case urged the legislature to clarify the law and broaden the meaning of sexual intercourse, it never did.

"It is well settled in Florida law that the meaning of 'sexual intercourse' is the penetration of the vagina by the penis, to the exclusion of all other sexual acts," the brief reads. "Therefore it excludes the sexual acts of which Mr. Debaun was accused."

The brief also argues that the court system should not be tasked with clearing up the legislature's obvious mistakes and omissions.

The state's case basically boils down to: "Come on, guys, this is common sense." To be more legally precise, the state argues that the spirit of the law was to curb the transmission of HIV by making it a crime for a positive person withholding his or her status to have any sexual contact with someone that could result in transmission of the virus. The state argues that Debaun clearly did just that. It also argues that the statute under which Debaun is charged does not use gendered language and that the definition his defense is relying on does.

For the record, many HIV activists have long considered such laws ineffective. The vast majority of cases of HIV are spread by people who do not yet know they are infected. Opponents argue that such laws effectively criminalize having HIV and dissuade people from getting regularly tested.

Laws like this were also passed well before pill regimens led to a reduction of the virus to such low, undetectable levels that HIV transmission between medicated positive partners and negative partners are exceedingly rare, if not impossible, regardless of condom use. Court records make no mention of whether Debaun's sexual partner contracted the virus.

This is definitely an intriguing case, but the court isn't expected to issue its ruling on the matter for months.

Follow Kyle Munzenrieder on Twitter @Munzenrieder


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