In an important decision on Florida’s criminal HIV exposure statute, Public Health §384.24(2), the Supreme Court of Florida ruled that “sexual intercourse,” as used in the statute, includes not only penile-vaginal intercourse, but also includes oral and anal sex. The case arose during a relationship between two men, defendant-petitioner Debaun, and the complainant (identified as “C.M.”). According to the decision, before C.M. would have sex with Debaun, he asked that Debaun provide him with a laboratory report confirming that Debaun was not HIV positive. Debaun provided C.M. with a fraudulent lab report that he was HIV negative, when in fact he was HIV positive. Thereafter they had oral and anal sex. When C.M. learned that the lab report was fraudulent he contacted the police and obtained an admission that the report was false from Debaun in a recorded phone call.
The trial court granted Debaun’s motion to dismiss, based upon a finding from the Second District that the term “sexual intercourse,” which is not defined in the statute, “applies only to the penetration of the female sex organ by the male sex organ.” State v. Debaun, 129 So. 3d 1089, 1091 (Fla. 3d DCA 2013). On appeal, the Third District Court reversed the decision, ruling that “sexual intercourse” includes the oral and anal sex in which Debaun and C.M. engaged. The Florida Supreme Court took the case because the Second, Third and Fifth District Courts had reached conflicting decisions as to what constituted “sexual intercourse.” See L.A.P. v. State, 62 So.3d 693, 694-95 (Fla. 2d DCA 2011); State v. D.C., 114 So. 3d 440 (Fla. 5th DCA), review dismissed, 123 So.3d 557 (Fla. 2013); State v. Debaun, 129 So. 3d 1089, 1095 (Fla. 3d DCA 2013).
In reaching its decision, the Supreme Court considered dictionary definitions of “sexual intercourse,” Florida legislative intent, and other statutory provisions. The Court ultimately decided that under §384.24(2) the term “sexual intercourse” “denotes sexual conduct that includes acts of oral and anal intercourse.” The Court also rests its ruling (that section of the decision that is legally binding), however, on unsupportable assumptions about the routes and risks of HIV transmission and the effectiveness of HIV criminal exposure laws in curtailing the disease:
[n]othing 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.
Id. at 13. The Court takes as a given that Florida’s HIV criminal law reduces transmission rates, despite the fact that more than two dozen studies on similar laws found no evidence that they change behaviors or reduce HIV incidence. See Dini Hasono et al., Criminalization of HIV Exposure: A Review of Empirical Studies, 21 AIDS & Behav. 27 (2017)(“Study results . . . suggest that the laws do not decrease or increase serostatus disclosure to sex partners among PLH. The laws also do not appear to reduce sexual risk behaviors among HIV-positive or -negative persons.”).
The Court’s reference to the role of oral sex in the incidence of HIV transmission also reveals a lack of familiarity with the established facts. As is otherwise well known, the transmission risk for receptive and insertive oral sex is zero or near-zero. Pragna Patel et al, Estimating Per-Act HIV Transmission Risk: A Systematic Review, 28 AIDS 1509-1519 (2014); Centers for Disease Control and Protection, Oral Sex and HIV Risk (updated July 16, 2016)(“[t]here is little to no risk of getting or transmitting HIV from oral sex.”).
The Court’s reliance on completely unfounded, outdated assumptions about HIV and the efficacy of criminalizing it disserves not only Floridians who live with HIV, but public health efforts to get people tested and in treatment which, unlike the law at issue, actually can end the HIV epidemic.