State v. Debaun

• Decision Date: 30 October 2013
• Docket Number: No. 3D11–3094.,3D11–3094.
• Parties: The STATE of Florida, Appellant, v. Gary G. DEBAUN, Appellee.
• Court: Florida District Court of Appeals

129 So.3d 1089

The STATE of Florida, Appellant,

v.Gary G. DEBAUN, Appellee.

No. 3D11–3094.

District Court of Appeal of Florida, Third District.

Oct. 30, 2013.

Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellant.

Alan Eckstein, Key West, for appellee.

Before SHEPHERD C.J., and WELLS and LAGOA, JJ.

WELLS, Judge.

The State of Florida appeals from an order interpreting the term “sexual intercourse” as used in section 384.24(2) of the Florida Statutes (2011) as meaning only contact between the genitals of a man and a woman and dismissing the charges against the appellee, Gary G. Debaun, for having uninformed HIV ¹ infected sexual intercourse with another man. Because we find that the term “sexual intercourse” as used in this provision applies to other behavior, including that between two men, we reverse.

Early in 2011, before entering into a sexual relationship with Debaun, C.M. asked that Debaun provide him with a laboratory report confirming Debaun's HIV status. Although the laboratory report Debaun provided showed that he was HIV negative, C.M. learned, after having engaged in mutual fellatio and penile-anal penetration by Debaun, that Debaun was in fact HIV positive. Debaun subsequently was charged with violating section 384.24(2), which makes it a crime for anyone who knows that he or she is infected with HIV to engage in “sexual intercourse” with anyone unless that person has been informed of the infection and consents to such intercourse:

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 that person has been informed of the presence of the sexually transmissible disease and has consented to the sexual intercourse.

§ 384.24(2), Fla. Stat. (2011).

Claiming that the term “sexual intercourse” as used in section 384.24(2) applies only to penetration of the female sex organ by the male sex organ, Debaun moved to dismiss the charges against him. The court below, while reasoning that the meaning of the term “sexual intercourse” as used in this provision was intended to apply to “any form of sexual activity,” nonetheless dismissed the charges against Debaun because of our sister court's decision in L.A.P. v. State, 62 So.3d 693 (Fla. 2d DCA 2011). Therein, the Second District held that, for purposes of section 384.24(2), “sexual intercourse” is an act where a male's penis is placed inside a female's vagina and therefore section 384.24(2) did not apply to the activities (oral sex and digital penetration between two women) involved there.

The issue before us is one of statutory construction and is subject to de novo review. See Fla. Dep't of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1264 (Fla.2008). While we need not determine whether the term “sexual intercourse” as used in section 384.24(2) encompasses any and all forms of sexual activity, including all of the activities (i.e., digital penetration) at issue in L.A.P., we do find that the term encompasses more than just penetration of the female sex organ by the male sex organ and includes the acts at issue here (fellatio and penile-anal penetration).

“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.” Paul v. State, 112 So.3d 1188, 1195 (Fla.2013) (quoting State v. Burris, 875 So.2d 408, 410 (Fla.2004)). Rather, the court will first look to the language of the statute itself because the statute's plain and ordinary meaning best reflects legislative intent. Id.

Where, as here, the legislature has not defined words used in a statute, it is appropriate to refer to dictionary definitions to ascertain the plain and ordinary meaning of a word. Id.;see also Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So.3d 1220, 1233 (Fla.2009). In this case, the dictionary definition of the term “sexual intercourse” when section 384.24 was enacted in 1986 is broader than just penetration of a vagina by a penis. In 1986, “sexual intercourse” was defined as:

Sexual intercoursen1: heterosexual intercourse involving penetration of the vagina by the penis: COITUS 2: intercourse involving genital contact between individuals other than penetration of the vagina by the penis

Merriam Webster's Third New International Dictionary 2082 (1986). Thus, Debaun and C.M. engaged in acts which fall within the plain and ordinary meaning of the term “sexual intercourse” as used in section 384.24(2). See E.A.R. v. State, 4 So.3d 614, 629 (Fla.2009) (“The intent of the Legislature is the polestar of statutory construction. To discern this intent, the Court looks ‘primarily’ to the plain text of the relevant statute, and when the text is unambiguous, our inquiry is at an end.”) (citation omitted).

Because we find 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, we need not, as did our sister court in L.A.P., look to case law defining this term as used in other statutes. While reference to case law and other statutes is a permissible means of determining the plain and ordinary meaning of words of common usage, we believe doing so in this case thwarts the legislative intent behind this law. See Paul, 112 So.3d at 1195 (quoting Burris, 875 So.2d at 410) (recognizing that the “statute's plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent”).

In reaching this determination, we are guided by the tenets that a statute “must be construed in its entirety and as a whole,” see Koile v. State, 934 So.2d 1226, 1233 (Fla.2006) (quoting St. Mary's Hosp., Inc. v. Phillipe, 769 So.2d 961, 967 (Fla.2000)), and in such manner that it does not “render part of [the] statute meaningless.” Id. (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 456 (Fla.1992)). To this end, “sexual intercourse” must be read in the context of not only section 384.24, but also in the context of Chapter 384 as a whole. See Fla. Dep't of Envtl. Prot., 986 So.2d at 1265–66;Miele v. Prudential–Bache Sec., Inc., 656 So.2d 470, 472 (Fla.1995) (“[T]he context in which a term is used may be referred to in ascertaining the meaning of that term.”); Ceco Corp. v. Goldberg, 219 So.2d 475, 476–77 (Fla. 3d DCA 1969) (recognizing that “[o]ur task as a reviewing court is to afford a logical construction according to the general terms and intentions of the entire ... Act,” and that “it is axiomatic that we construe the statute as a whole entity ... in order to arrive at a construction which avoids illogical results”).

Chapter 384, of which section 384.24(2) is a part, is titled the “Control of Sexually Transmissible Disease Act” and addresses the threat to the public posed by sexually transmitted diseases. § 384.21, Fla. Stat. (2011); § 384.22, Fla. Stat. (2011). Section 384.23 defines a “sexually transmissible disease” as “a bacterial, viral, fungal, or parasitic disease” such as “chancroid, gonorrhea, granuloma inguinale, lymphogranuloma venereum, genital herpes simplex, chlamydia, nongonococcal urethritis (NGU), pelvic inflammatory disease (PID)/acute salpingitis, syphilis, [and] human immune deficiency virus infection [HIV].” § 384.23(3), Fla. Stat. (2011). Section 384.22 states as the Act's purpose the intent to reduce the spread of these diseases:

Findings; intent.—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).

To this end, section 384.24(1)-(2) makes it unlawful for “any person” who has any of these diseases to have “sexual intercourse” with any “other person” without informing that person of the sexually transmissible disease. ² Many of the defined diseases may be transmitted by means other than penetration of the vagina by a penis. Blood, semen and vaginal secretions from an HIV-infected person can transmit HIV to another man or woman. See Centers for Disease Control and Prevention, http:// www. cdc. gov/ hiv/ resources/ qa/ transmission. htm. HIV transmission most commonly occurs through anal sex (penile-anal penetration) and vaginal sex (penile-vaginal penetration), but can occur through oral sex (mouth to genital contact) as well. Id.Genital herpes simplex may also be spread by anal, vaginal, or oral sex. See Centers for Disease Control and Prevention, http:// www. cdc. gov/ std/ Herpes/ STDFact- Herpes. htm. So, too, may gonorrhea. See Centers for Disease Control...