Sunset falls over the Florida Supreme Court building
Sunset falls over the Florida Supreme Court building (Phil Sears)

Like Bill Clinton circa Monica Lewinsky, the justices of the Florida Supreme Court are being asked to define “sexual intercourse.”

They’re in a similar lose-lose position. Impeachment followed the president’s assertion, “I did not have sexual relations with that woman,” the one who was hoarding a stained blue dress. Somehow he kept his job and his wife.

If the justices rule that the term “sexual intercourse” in Florida’s HIV disclosure law covers same-sex behavior, they’ll invite outcries from the left. Liberals would deride them for the politically incorrect idea it’s OK to punish HIV sufferers who belong to the gay community.

If they say the term refers only to male-female relations, conservatives will nail them for reverse discrimination.

The high court’s dilemma arises from a case in which the Third District Court of Appeal decided that Gary Debaun can be prosecuted for a third-degree felony. He is charged with persuading another man to have sex with him by sharing a false lab report showing he was HIV negative.

The disclosure law, Florida Statutes Section 384.24(2), punishes HIV carriers who don’t reveal their status to their bed partners.

The issue is a tough one for gays who support legal rulings that extend equal status to same-sex conduct. Yet they oppose HIV disclosure laws, arguing they stigmatize people infected with the virus. Norm Kent, a Fort Lauderdale gay rights lawyer and publisher, has called Florida’s law “draconian.”

Precedential ruling

The text doesn’t define “sexual intercourse.” On Oct. 30, the Third District defined it broadly.

Because the law aims generally at preventing sexually transmitted diseases however they are caused, targeting only straight sex “makes no sense,” Judge Linda Ann Wells wrote for the panel majority. “Such a result would be absurd.”

The Second District Court of Appeal came to the opposite conclusion in 2011. A woman identified only as L.A.P. pleaded guilty to violating the HIV disclosure law but reserved the right to appeal.

Looking to the incest statute, which says sexual intercourse is “the penetration of the female sex organ by the male sex organ,” the court ruled the HIV disclosure law didn’t apply to L.A.P.’s activities.

“[W]e are compelled to reverse her conviction,” Judge Anthony Black wrote.

The Key West trial judge who dismissed the charges against Debaun relied on L.A.P., Wells noted. Her opinion reversing the lower court also certifies conflict with the Second District.

Both the Miami-Dade public defender and the Florida attorney general urged the high court to accept jurisdiction. On April 3, their request was granted.

Changing times

In the unlikely event the justices decide to delve deeply into the HIV disclosure law, they’ll have lots of relevant sources to tap.

Thirty-four U.S. states and territories have criminal statutes based on exposure to HIV, most dating from the 1990s. There have been prosecutions in at least 39 states, under HIV-specific laws or general criminal laws such as reckless endangerment.

The laws are criticized as obsolete, having been adopted before antiretroviral treatment turned HIV into what the Center for HIV Law & Policy calls “a chronic, manageable illness.”

“The stigma was richer than it is today—it was considered a death sentence,” Beirne Roose-Snyder, managing attorney for the New York-based center, told a gathering in Wilton Manors.

“There’s just this assumption that no one would ever knowingly have sex with someone who’s HIV positive,” she said in a South Florida Gay News report of the meeting.

Cue a political sea change.

The REPEAL (for Repeal Existing Policies that Encourage or Allow Legal) HIV Discrimination Act now before Congress has the backing of the ACLU and the U.S. Conference of Mayors, among others. The White House supports the HIV decriminalization policy of the Centers for Disease Control and Prevention.

The REPEAL Act has even won that rarest of all things in Congress, bipartisan backing. Sponsors are Reps. Barbara Lee, D-Calif., and Ileana Ros-Lehtinen, R-Fla., who claims 41 co-sponsors in an impassioned statement on YouTube.

The act would encourage states to bring their HIV criminal laws into compliance with the current scientific understanding of how the virus is prevented and treated.

“These laws create a climate of fear and distress, stigmatizing those with HIV/Aids and subjecting them to prosecutions and discrimination that individuals with other diseases do not experience,” Ros-Lehtinen says in her video.

If Florida were to conduct the assessment, legislators would have to address this fact: It’s a felony to violate the HIV disclosure law, but only a misdemeanor to withhold information about other sexually transmitted diseases.

New York case

Courts have been slow to board the HIV decriminalization band wagon.

But in November, a New York appellate court ruled that an HIV-positive Syracuse man who had sex with an unsuspecting partner could not be charged with first-degree reckless endangerment.

The defendant’s conduct didn’t create a grave risk of death—an element of the offense—because carrying HIV is no longer “tantamount to a death sentence,” according to the Appellate Division, Fourth Department.

No such discussion appears in the decisions the Florida Supreme Court will review in the Debaun case.

The dissenter from the Third District panel opinion, Chief Judge Frank Shepherd, would encourage the high court to home in on the plain meaning of the HIV disclosure law.

To Shepherd, that requires throwing out the charges against Debaun.

He wrote, “The focus of the majority obscures the real issue: What is the meaning of ‘sexual intercourse.’ ”