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Is Gay Sex 'Sex,' Legally Speaking? Florida Supreme Court Says Yes

By Casey C. Sullivan, Esq. on March 20, 2017 | Last updated on March 21, 2019

It's not often that courts provide us with insight into sexual intercourse. But yesterday, the Florida Supreme Court shed some much-needed light on that topic.

If you're looking for some tips into the arts erotic, though, this isn't the case to turn to. (I don't believe such a case exists, but correct me if I'm wrong.) Rather, this is a case of statutory interpretation, one that forced the court to decide whether "sexual intercourse" was limited to good ol' penile-vaginal fornication or covered the gay kind of lovemaking as well.

Sex, HIV, and Florida Law

The case, Debaun v. State, arose after Gary D. Debaun was prosecuted for having sex after allegedly misrepresenting his HIV status to his partner. Florida, like many other states, has an HIV-disclosure law criminalizing sexual intercourse by HIV-positive individuals when those individuals knows their positive status, know that they could transmit the virus, and do not inform their partner of those facts. Such laws are controversial and have been criticized by HIV/AIDS activists, LGBT rights groups, and health policy experts alike. But they remain on the books throughout the country.

Debaun's prosecution came after he was accused of deceiving a male partner about his HIV status. Before having sex with the man, Debaun produced a forged lab report saying he was HIV-negative. The opposite was true, a fact that was only revealed after the deed was done.

But, Debaun argued, Florida's HIV-disclosure law didn't apply to him.

Is Gay Sex "Sex," Legally Speaking?

This was no "it depends upon on what the meaning of the word 'is' is" defense. Debaun actually had a fairly strong argument. The Florida statute does not define "sexual intercourse," and one Florida appellate court has read the law as applying only to "penile-vaginal penetration."

The Florida Supreme Court, however, disagreed. Ruling that the plain meaning of "sexual intercourse" should control, the justices then turned to three dictionaries. Each defined sex as more than just baby making on your wedding night. Merriam-Webster's Collegiate Dictionary took, perhaps, the broadest approach. According to that dictionary, intercourse requires nothing but a pair (or more), some physical, sexual contact, and "the genital of at least one person."

Further, the Florida Supreme Court explained, a broader reading comports with the purpose of the law. STDs, after all, can be transmitted through more than just penile-vaginal penetration.

So there you go. Sometime in the future, when it comes time to sit down and have "the talk" with your kids, just hand them a copy of Debaun v. State.

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