Debaun v. State

Decision Date16 March 2017
Docket NumberNo. SC13–2336,SC13–2336
Citation213 So.3d 747
Parties Gary G. DEBAUN, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

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

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 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.

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 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 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 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" provided...

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