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What Is Sexual Intercourse? The Florida Supreme Court Now Has an Answer

By Casey C. Sullivan, Esq. on March 17, 2017 | Last updated on March 21, 2019

A recent Florida Supreme Court case went a bit beyond the regular euphemisms about the birds and the bees into a straight up, in your face, hardcore examination of sexual intercourse.

The definition of sexual intercourse, that is. Examining a Florida law criminalizing the spread of sexually transmitted diseases, the court was forced to determine just what counted as "sexual intercourse." Was it limited to old-fashioned, Church-approved, when-a-man-loves-a-woman-very-much stuff, or could it be read to include some man-on-man action?

Sexual Intercourse and Section 384.24(2)

Alright, grade school tee-hee'ing aside, the case, Debaun v. State, actually called for some serious statutory interpretation. Florida Statutes Section 384.24(2) makes it unlawful for anyone HIV-positive, who is aware of their status and the risk of transmission to others, "to have sexual intercourse with any other person, unless such other person has been informed of the presence of the sexually transmissible disease and has consented to the sexual intercourse." Passed in 1986, the law was one of several similar legislative attempts to respond to the growing "AIDS hysteria" by creating HIV-specific criminal laws.

Gary D. Debaun was charged with violating that law in 2011, after he was accused of misrepresenting his HIV status to another man. Debaun allegedly not only failed to disclose his status before having sex with the man, but provided him with a forged lab report stating that he was HIV-negative. Not cool, Gary.

However, there was some difficulty with the prosecution.

Section 384.24(2), of course, does not define sexual intercourse. But Florida's Second District has held that "sexual intercourse" as used in the statute applies only to "the penetration of the female sex organ by the male sex organ." Under that reading of the law, Debaun and his partner's coupling would not count.

Let the Dictionaries Decide

The Florida Supreme Court rejected that narrow reading of "sexual intercourse," holding that the phrase in the statute covers more than just penile-vaginal hanky panky. And they only had to read three dictionaries to get there.

The definition of the term should be controlled by its plain and ordinary meaning, the court explained. To find that plain and ordinary meaning, it turned to "Webster's," "the American Heritage Dictionary," and "Merriam-Webster's Collegiate Dictionary." All three defined sexual intercourse more expansively than simple heterosexual penetration. "Thus," the court wrote, "the plain meaning of 'sexual intercourse' clearly encompass[es] acts beyond penile-vaginal intercourse."

A more expansive reading of sexual intercourse would further the intent of the law, the court continued, which was to reduce the spread of STDs. HIV, of course, can be spread through more than just vaginal intercourse.

Finally, the court rejected the argument that the treatment of "sexual intercourse" in other statutes and caselaw should control. The Second District's narrow reading of sexual intercourse had been influenced by the definition of the term in the state's incest law, as well as three cases considering the term "as applied to the obsolete crime of carnal intercourse with an unmarried female of previous chase character under the age of eighteen years." Those readings of the term were not applicable here, the Florida Supreme Court ruled.

Now, with sexual intercourse finally defined, Debaun's case will return to the trial court.

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