A law that requires someone with HIV to notify a potential sex partner beforehand applies to same-sex relationships as well as between a man and a woman, the Florida Supreme Court unanimously decided Thursday.
The defendant, Gary Debaun, has been trying to have a charge dismissed under a 1986 state law designed to prevent the spread of the human immunodeficiency virus. Debaun is HIV-positive, according to records.
The case, argued last February, involved the definition of “sexual intercourse.” In 2011, Debaun, a man, lied to a male sex partner that he was HIV-negative, “forg(ing) his doctor’s signature on the lab report,” the opinion said. It did not state whether the other man acquired the virus from having sex with Debaun.
Lawyers for Debaun had argued the law says it’s illegal not to disclose an HIV infection before “sexual intercourse,” but that definition only appeals to traditional sex between a man and a woman—not two men.
The law itself does not define sex, and two different appellate courts had disagreed over the definition.
Justice Charles Canady, who wrote the decision, said “we first consider the plain and ordinary meaning of the term ‘sexual intercourse’ and conclude that it is not limited to only penile-vaginal intercourse.”
He then notes that “HIV can be spread through vaginal, anal, and oral sex, but anal sex presents the greatest risk of transmitting the infection,” and “gay, bisexual, and other men who have sex with men … are the population most severely affected by HIV.”
Including forms of sex other than penile-vaginal in the definition of intercourse is “a reasonable result, which gives full effect to the Legislature’s intent to reduce the incidence of HIV,” Canady wrote.
“As used in a statute directed at curtailing the spread of HIV(, )it would be absurd for the term ‘sexual intercourse’ to apply only to the act of heterosexual penile-vaginal intercourse,” he added.
As of mid-2015, the Florida Department of Health estimated that nearly 110,000 Floridians were living with HIV, and there had been almost 5,900 newly-diagnosed HIV infections in the state in 2014.