Gary G. Debaun v. State of Florida

Supreme Court of Florida
____________

No. SC13-2336
____________

GARY G. DEBAUN,
Petitioner,

vs.

STATE OF FLORIDA,
Respondent.

[March 16, 2017]

CANADY, J.

In this case we consider whether the term “sexual intercourse” as used in the

context of a statutory scheme enacted to prevent the spread of sexually

transmissible diseases encompasses conduct beyond penile-vaginal intercourse.

We have for review State v. Debaun, 129 So. 3d 1089, 1095 (Fla. 3d DCA 2013),

in which the Third District Court of Appeal held that the term “sexual intercourse”

as used in section 384.24(2), Florida Statutes (2011), encompasses conduct beyond

penile-vaginal intercourse, including oral and anal intercourse between two men.

The Third District certified that its decision is in direct conflict with L.A.P. v.

State, 62 So. 3d 693, 694-95 (Fla. 2d DCA 2011), in which the Second District
held that the term “sexual intercourse” as used in section 384.24(2) applies only to

“the penetration of the female sex organ by the male sex organ.” We have

jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because we conclude that the term

“sexual intercourse” in section 384.24(2) encompasses conduct beyond penile-

vaginal intercourse, we approve the decision of the Third District in Debaun and

disapprove the decision of the Second District in L.A.P.

I. BACKGROUND

In 2011, Gary G. Debaun was charged with violating section 384.24(2),

Florida Statutes (2011), which provides:

It is unlawful for any person who has human immunodeficiency
virus infection, when such person knows he or she is infected with
this disease and when such person has been informed that he or she
may communicate this disease to another person through sexual
intercourse, 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.

The charge arose from a homosexual relationship between Debaun and the

victim, C.M. Debaun, 129 So. 3d at 1090. Before engaging in sexual activity with

Debaun, C.M. requested that Debaun provide him with a laboratory report

confirming that Debaun was not infected with human immunodeficiency virus

(HIV). Id. Debaun obliged and provided C.M. with a lab report indicating that he

was HIV negative. Id. But after engaging in oral and anal intercourse with

Debaun, C.M. learned that Debaun had forged his doctor’s signature on the lab

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report and was in fact HIV positive. Id. C.M. reported the crime and assisted law

enforcement in obtaining admissions from Debaun during a controlled phone call.

Debaun was subsequently charged with violating section 384.24(2), a third-degree

felony.1

Debaun moved to dismiss the charge under Florida Rule of Criminal

Procedure 3.190(c)(4), arguing that the term “sexual intercourse,” which is not

defined in chapter 384, applies only to penetration of the female sex organ by the

male sex organ. Id. at 1091. The trial court granted Debaun’s motion to dismiss

based on the decision of the Second District in L.A.P., 62 So. 3d at 694-95, which

held that the term “sexual intercourse” in section 384.24(2) applies only to penile-

vaginal intercourse between a male and a female. Id. The State appealed. Id.

On appeal, the Third District rejected the holding of L.A.P. and concluded

that the “meaning of the term ‘sexual intercourse’ as used in section 384.24(2)

includes more than an act where a male’s penis is placed inside a female’s vagina,

and encompasses the oral and anal sexual activity” in which Debaun engaged with

the victim. Id. at 1095. The court reversed the order dismissing the charge against

Debaun and certified conflict with L.A.P. Id.

1. See § 384.34(5), Fla. Stat. (2011) (“Any person who violates s. 384.24(2)
commits a felony of the third degree . . . . Any person who commits multiple
violations of s. 384.24(2) commits a felony of the first degree . . . .”).

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 In reaching its conclusion that section 384.24(2) applied to conduct beyond

penile-vaginal intercourse, the Third District ascertained the plain and ordinary

meaning of “sexual intercourse” from an edition of Webster’s Third New

International Dictionary that was published the same year that section 384.24(2)

was enacted, defining “sexual intercourse” as either “heterosexual intercourse

involving penetration of the vagina by the penis” or “intercourse involving genital

contact between individuals other than penetration of the vagina by the penis.” Id.

at 1091 (citing Webster’s Third New International Dictionary 2082 (1986)).

Having determined that “the plain and ordinary meaning of the term ‘sexual

intercourse’ as used in section 384.24(2) includes more than an act where a male’s

penis is placed inside a female’s vagina” and recognizing that it would thwart

legislative intent to interpret the statute as prohibiting only penetration of the

vagina by the penis, the court concluded that Debaun “engaged in acts which fall

within the plain and ordinary meaning of the term ‘sexual intercourse’ as used in

section 384.24(2).” Id. at 1091-92.

The Third District found support for its conclusion within the legislative

history of chapter 384. Prior to the enactment of the Control of Sexually

Transmissible Disease Act in 1986, chapter 384 was known as the Venereal

Diseases Act. Id. at 1093. Under the Venereal Diseases Act, it was “unlawful for

any female afflicted with any venereal disease, knowing of such condition, to have

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sexual intercourse with any male person, or for any male person afflicted with any

venereal disease, knowing of such condition, to have sexual intercourse with any

female.” § 384.02, Fla. Stat. (1985), repealed by ch. 86-220, § 91, Laws of Fla. In

1986, when the Venereal Diseases Act was repealed and replaced by the Control of

Sexually Transmissible Disease Act, and section 384.02 was replaced by section

384.24, the application of the Act was expanded from only sexual intercourse

between “any female . . . with any male person” and “any male person . . . with any

female” to sexual intercourse between “any person . . . with any other person.”

Compare § 384.02, Fla. Stat. (1985), with § 384.24, Fla. Stat. (1986). The Third

District concluded that these changes to the statutory scheme in chapter 384

evinced the Legislature’s intent to expand the definition of “sexual intercourse”

beyond conduct involving only a man and a woman. Debaun, 129 So. 3d at 1094.

In L.A.P., which was decided two years before Debaun, the Second District

concluded “that sexual intercourse is an unambiguous phrase which must be given

its plain meaning in the absence of a definition in chapter 384.” 62 So. 3d at 694.

In order to ascertain the plain meaning of the term, the court relied on the

definition of “sexual intercourse” provided in section 826.04, Florida Statutes,

which prohibits incest. The incest statute defines “sexual intercourse” as “the

penetration of the female sex organ by the male sex organ . . . .” Id. (alteration in

original) (quoting § 826.04, Fla. Stat. (2008)). Based on this definition, the Second

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District concluded that the Legislature’s use of the term “sexual intercourse within

section 384.24(2) is clear[ly] and unambiguous[ly]” limited to heterosexual penile-

vaginal intercourse, and therefore “the statute d[id] not apply to [L.A.P.’s]

actions”—“engaging in oral sex and digital penetration of the vagina without

informing her partner of her HIV positive status.” Id. at 694-95.

During the pendency of Debaun’s appeal, the Fifth District also considered

the scope of the term “sexual intercourse” in section 384.24(2). See State v. D.C.,

114 So. 3d 440 (Fla. 5th DCA), review dismissed, 123 So. 3d 557 (Fla. 2013)

(table). Like Debaun, the defendant in D.C. was charged with violating section

384.24(2) after engaging in oral and anal intercourse with another man without

first disclosing that he was HIV positive. Id. at 441. D.C. moved to dismiss the

charge, “contending that sexual intercourse, as that term is used in section

384.24(2), takes place only when the female sex organ is penetrated by the male

sex organ and, therefore, the statute did not apply to [his] alleged conduct, which

involved homosexual oral and anal sex” between two men. Id. The trial court

granted the motion and dismissed the charge based on the Second District’s earlier

decision in L.A.P., and the State appealed. Id. at 440-41, 443.

On appeal, the Fifth District sought to “determine the plain and obvious

meaning of [the] statute’s text by referring to dictionaries.” Id. at 442. After

reciting a number of definitions from various dictionaries, the court noted that none

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of the definitions uncovered by the court or cited by D.C. limited “sexual

intercourse” to “heterosexual vaginal intercourse.” Id. The Fifth District therefore

concluded that “the plain and ordinary meaning of the term sexual intercourse, as

used in section 384.24(2), includes vaginal, anal, and oral intercourse between

persons, regardless of their gender.” Id. The court stated that limiting the meaning

of “sexual intercourse” in the statute to penile-vaginal intercourse “would lead to

‘a result clearly contrary to legislative intent.’ ” Id. (quoting State v. Burris, 875

So. 2d 408, 410 (Fla. 2004)). In reversing the trial court’s order dismissing the

information, the Fifth District also certified conflict with the Second District’s

decision in L.A.P.2 Id. at 443.

II. ANALYSIS

In the analysis that follows, 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. We then conclude that the plain and ordinary meaning of

“sexual intercourse” controls in section 384.24(2) because it effectuates the

legislative intent of the statute. Lastly, in light of the plain and ordinary meaning

and the legislative intent, we explain why the definitions of “sexual intercourse”

2. D.C. sought review of the decision in this Court based on the certified
conflict with L.A.P., but because he failed to timely file his notice to invoke this
Court’s jurisdiction, the case was dismissed. D.C. v. State, 123 So. 3d 557 (Fla.
2013) (table).

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provided in the incest statute and referenced in the case law cited in L.A.P. are not

applicable to section 384.24(2).

The narrow issue before the Court is whether the term “sexual intercourse”

as used in section 384.24(2) is limited to conduct involving the penetration of the

female sex organ by the male sex organ or whether it encompasses conduct beyond

penile-vaginal intercourse. This presents a question of statutory interpretation,

which is subject to de novo review. Anucinski v. State, 148 So. 3d 106, 108 (Fla.

2014).

With regard to questions of statutory interpretation, we have stated:

Our purpose in construing a statute is to give effect to the
Legislature’s intent. When a statute is clear, courts will not look
behind the statute’s plain language for legislative intent or resort to
rules of statutory construction to ascertain intent. Instead, the statute’s
plain and ordinary meaning must control, unless this leads to an
unreasonable result or a result clearly contrary to legislative intent.
Paul v. State, 129 So. 3d 1058, 1064 (Fla. 2013) (quoting Burris, 875 So. 2d at

410). “Where, as here, the [L]egislature has not defined the words used in a

[statute], the language should be given its plain and ordinary meaning.” Sch. Bd.

of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So. 3d 1220, 1233 (Fla.

2009) (second alteration in original) (quoting Fla. Birth-Related Neurological

Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 686 So. 2d 1349, 1354 (Fla.

1997)). “When considering the [plain] meaning of terms used in a statute, this

Court looks first to the terms’ ordinary definitions[, which] . . . may be derived

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from dictionaries.” Dudley v. State, 139 So. 3d 273, 279 (Fla. 2014) (second and

third alterations in original) (quoting Trinidad v. Fla. Peninsula Ins. Co., 121 So.

3d 433, 439 (Fla. 2013)); see also E.A.R. v. State, 4 So. 3d 614, 632 (Fla. 2009);

Barco v. Sch. Bd. of Pinellas Cnty., 975 So. 2d 1116, 1122 (Fla. 2008). Because

the Legislature did not define “sexual intercourse” in chapter 384, we look to the

dictionary in order to ascertain the plain and ordinary meaning of the term.

Webster’s Third New International Dictionary defines “sexual intercourse”

as both “heterosexual intercourse involving penetration of the vagina by the penis”

and “intercourse involving genital contact between individuals other than

penetration of the vagina by the penis.” Webster’s Third New International

Dictionary 2082 (1993). The American Heritage Dictionary defines “sexual

intercourse” as “[s]exual union between a male and a female involving insertion of

the penis into the vagina” and “[s]exual activity that includes insertion of the penis

into the anus or mouth.” The American Heritage Dictionary of the English

Language 1606 (5th ed. 2011). Merriam-Webster’s Collegiate Dictionary defines

“intercourse” as “physical sexual contact between individuals that involves the

genitalia of at least one person.” Merriam-Webster’s Collegiate Dictionary 652

(11th ed. 2014). Thus, the plain meaning of “sexual intercourse” clearly

encompass acts beyond penile-vaginal intercourse. Because this Court must apply

the plain meaning of the term unless doing so would render an absurd result or a

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result clearly contrary to legislative intent, we turn next to a discussion of the

legislative intent behind the statute.

Chapter 384 is known as the “Control of Sexually Transmissible Disease

Act.” § 384.21, Fla. Stat. (2011). It is contained within Title XXIX of the Florida

Statutes, which is titled “Public Health.” Section 384.22 explicitly sets forth the

legislative intent and purpose of the Act as follows:

The Legislature finds and declares that sexually transmissible
diseases constitute a serious and sometimes fatal threat to the public
and individual health and welfare of the people of the state and to
visitors to the state. The Legislature finds that the incidence of
sexually transmissible diseases is rising at an alarming rate and that
these diseases result in significant social, health, and economic costs,
including infant and maternal mortality, temporary and lifelong
disability, and premature death. The Legislature finds that sexually
transmissible diseases, by their nature, involve sensitive issues of
privacy, and it is the intent of the Legislature that all programs
designed to deal with these diseases afford patients privacy,
confidentiality, and dignity. The Legislature finds that medical
knowledge and information about sexually transmissible diseases are
rapidly changing. The Legislature intends to provide a program that is
sufficiently flexible to meet emerging needs, deals efficiently and
effectively with reducing the incidence of sexually transmissible
diseases, and provides patients with a secure knowledge that
information they provide will remain private and confidential.
§ 384.22, Fla. Stat. (2011) (emphasis added). Within the Act, section 384.24(2)

seeks to further the Legislature’s intent to reduce the incidence of sexually

transmissible diseases by making it unlawful for any person with HIV to

knowingly expose another person to HIV through sexual intercourse without

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informing the other person of the presence of the disease and obtaining that

person’s consent to the intercourse and exposure to the disease.

According to the CDC, HIV can be spread through vaginal, anal, and oral

sex, but anal sex presents the greatest risk of transmitting the infection. Centers for

Disease Control and Prevention, HIV Transmission,

http://www.cdc.gov/hiv/basics/transmission.html (last visited March 1, 2017).

Further, although gay, bisexual, and other men who have sex with men represent

only about 2% of the United States population, they are the population most

severely affected by HIV. Centers for Disease Control and Prevention, Fact Sheet:

HIV Among Gay and Bisexual Men (Sept. 2016),

http://www.cdc.gov/hiv/pdf/group/msm/cdc-hiv-msm.pdf. In 2014, gay and

bisexual men accounted for the majority (67%) of new HIV infections, as well as

the majority of all people (55%) living with HIV in the United States as of 2013.

Id.

When the plain meaning of the term “sexual intercourse”—which includes

oral and anal intercourse between two men—is applied to section 384.24(2), the

statute acts to prohibit HIV-positive individuals from engaging in the sexual acts

that are most likely to transmit the infection to a sexual partner without informing

the partner of the presence of the infection and obtaining the partner’s consent to

the intercourse despite the presence of the infection. This is a reasonable result,

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which gives full effect to the Legislature’s intent to reduce the incidence of HIV.

Thus, the plain meaning of the term controls in section 384.24(2).

Lastly, we explain why although “[i]n the absence of a statutory definition, it

is permissible to look to case law or related statutory provisions that define the

term,” L.A.P., 62 So. 3d at 694 (alteration in original) (quoting State v. Brake, 796

So. 2d 522, 528 (Fla. 2001)), the definitions of “sexual intercourse” provided in the

incest statute and referenced in the cases cited by the Second District in L.A.P. are

not applicable to section 384.24(2).

First, when a court looks to other statutory provisions to define a term that

lacks its own statutory definition, the provision to which a court looks must be

related to the provision lacking a definition. “[T]he incest statute addresses ‘the

violation of generally accepted societal standards involving marriage and sexual

intercourse between persons related within the specified degrees. Society’s

interests in prohibiting incest include the prevention of pregnancies which may

involve a high risk of abnormal or defective offspring.’ ” Beam v. State, 1 So. 3d

331, 334 (Fla. 5th DCA 2009) (quoting Slaughter v. State, 538 So. 2d 509, 512

(Fla. 1st DCA 1989)); see also Carnes v. State, 725 So. 2d 417, 418 (Fla. 2d DCA

1999) (“The obvious purpose of the incest statute is to address the evil of sexual

intercourse between persons who are related to each other within specific

degrees.”). Section 384.24(2), which is located in a different chapter and under a

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different title than the incest statute, addresses a separate evil and is not related to

the incest statute.

Second, application of the definition of “sexual intercourse” provided in the

incest statute (“penetration of the female sex organ by the male sex organ”) to

section 384.24(2) would fail to give full effect to the statute and the legislative

intent of chapter 384 by excluding from the statute’s ambit both the type of sexual

intercourse with the highest risk of communicating HIV and the category of

individuals accounting for the majority of existing and new HIV infections.

Application of such a limited definition would exempt from prosecution HIV-

positive individuals who knowingly expose their unwitting partners to HIV by

engaging in penile-anal or penile-oral intercourse. HIV-positive individuals could

engage in homosexual activity with impunity while those engaging in heterosexual

activity would need only avoid penile-vaginal intercourse in order to circumvent

the law. Nothing in the statutory text or context indicates that the Legislature

intended to reduce the incidence of HIV only among those who partake exclusively

in heterosexual penile-vaginal intercourse while allowing the incidence of HIV to

continue to “ris[e] at an alarming rate,” section 384.22, Florida Statutes, among

those engaging in penile-anal or penile-oral intercourse with a member of the same

or opposite sex. Such incongruous results would vitiate the intent of the

Legislature to curtail the spread of HIV.

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 Because the incest statute is directed at the prevention of certain pregnancies

there is no reason for the term “sexual intercourse” as used in that statute to

encompass any act beyond penile-vaginal intercourse. But as used in a statute

directed at curtailing the spread of HIV—which can be communicated through

vaginal, anal, and oral intercourse, and is in fact most likely to be spread through

anal intercourse—it would be absurd for the term “sexual intercourse” to apply

only to the act of heterosexual penile-vaginal intercourse. If the Legislature

intended to exclude from section 384.24(2) knowing and unconsented exposure to

HIV through oral or anal sexual intercourse, it could have provided a specific and

limited definition of “sexual intercourse,” just as it did in the incest statute.

In addition to the incest statute, the Second District in L.A.P. relied on four

cases in support of its conclusion that the definition of “sexual intercourse”

provided in the incest statute limits the use of the term in section 384.24(2) to

penile-vaginal intercourse. One of those cases, Green v. State, 765 So. 2d 910

(Fla. 2d DCA 2000), did not define “sexual intercourse.” Two of those cases, State

v. Bowden, 18 So. 2d 478 (Fla. 1944), and Williams v. State, 109 So. 305 (Fla.

1926), considered the definition of the term as applied to the obsolete crime of

carnal intercourse with an unmarried female of previous chaste character under the

age of eighteen years. And the fourth case, Lanier v. State, 443 So. 2d 178 (Fla. 3d

DCA 1983), decision quashed, 464 So. 2d 1192 (Fla. 1985), merely relied on the

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definition in Williams. None of those cases compel us to impose a limitation on

the application of section 384.24(2) to only penile-vaginal intercourse. Further, the

Second District ignored more recent case law in which the term “sexual

intercourse” was used to describe homosexual conduct. E.g., Hawker v. State, 951

So. 2d 945 (Fla. 4th DCA 2007) (using the term “sexual intercourse” throughout

the opinion to refer to conduct between two males); Grohs v. State, 944 So. 2d 450,

457 (Fla. 4th DCA 2006) (referring to “sexual intercourse” involving two males).

Finally, we reject the suggestion that the rule of lenity in section 775.021(1),

Florida Statutes, requires that we adopt the restricted definition of “sexual

intercourse” urged by Debaun. The rule “that criminal statutes must be strictly

construed does not require that the words of an enactment be given their narrowest

meaning or that the lawmaker’s evident intent be disregarded.” United States v.

Giles, 300 U.S. 41, 48 (1937) (citing United States v. Corbett, 215 U.S. 233, 242

(1909)). The term “sexual intercourse” is commonly understood to broadly refer to

various sexual acts—including the sexual act at issue here. In certain contexts, the

term refers specifically—that is, more narrowly—to penile-vaginal intercourse.

But in the context of section 384.24(2), “sexual intercourse” unambiguously

denotes sexual conduct that includes acts of oral and anal intercourse.

III. CONCLUSION

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 The term “sexual intercourse” in section 384.24(2) encompasses conduct

beyond heterosexual penile-vaginal intercourse. We therefore approve the Third

District’s decision in Debaun and disapprove the Second District’s decision in

L.A.P. to the extent that it conflicts with this opinion.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and POLSTON, JJ.,
concur.
LAWSON, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions

Third District - Case No. 3D11-3094

(Monroe County)

Carlos J. Martinez, Public Defender, and Brian Lee Ellison, Assistant Public
Defender, Eleventh Judicial Circuit, Miami, Florida,

for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Richard L. Polin, Bureau
Chief, and Joanne Diez and Jeffrey R. Geldens, Assistant Attorneys General,
Miami, Florida,

for Respondent

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