Florida Supreme Court Explains State Criminal Law on HIV Sex

Florida law makes it a crime for a person with HIV to knowingly have sex with another person without telling their partner about the infection. In a recent Florida sex crime decision, the state’s Supreme Court made clear that the law applies to both heterosexual and homosexual activity.

judge's gavelThe defendant was charged in 2011 with violating a Florida law that makes it a crime for a person with an immunodeficiency virus that can be transmitted by sexual intercourse “to have sexual intercourse with any other person” without telling the person about the disease. The defendant, who is HIV positive, allegedly forged a lab report to indicate that he was not infected with the disease. He showed the forged report to another man with whom he was in a relationship before the men engaged in oral and anal intercourse, according to the court.

A trial judge dismissed the charge, agreeing with the defendant’s lawyer that the state law covers only “the penetration of the female sex organ by the male sex organ.” The judge cited a 2011 decision from the Second District Court of Appeal, which sits in Lakeland. That court reached the same conclusion. On appeal, however, the Third District in Miami disagreed. The appeals court said the term “sexual intercourse” includes oral and anal sex.

The differing decisions left it up for the state Supreme Court to weigh in. The Court, in a decision by Justice Charles Canady, said the defendant broke the law by engaging in oral and anal sex without telling his partner that he is HIV positive. Canady focused on what he called the “plain and ordinary meaning” of the term “sexual intercourse,” since the term was not defined in the law. He noted that various dictionaries defined the term as including a wide range of sexual activity. He also noted that HIV can be transmitted via oral and anal intercourse and that anal intercourse presents the greatest risk of infection.

“When the plain meaning of the term ‘sexual intercourse’—which includes oral and anal intercourse between two men—is applied to [the law], 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,” Canady explained. He called that “a reasonable result” that carries out state lawmakers’ aim of trying to limit the spread of HIV.

As a result, the Court said the defendant should be convicted.

If you or a loved one has been charged with a sex crime in Florida, it is essential that you seek the advice and counsel of an experienced lawyer. St. Petersburg sex crime attorney Will Hanlon is a seasoned lawyer who fights aggressively on behalf of clients charged with a wide range of offenses. Call our offices at (727) 897-5413 or contact us online to speak with Mr. Hanlon about your case.

More blog posts:

Limitations Period Expired for Sex Crime Charge, Rules Florida Appeals Court

Florida Gun Crime Decision Discusses Meaning of “Possessing” a Firearm

Defendant in Florida Carjacking Case Fails on Double Jeopardy Appeal