Brian Ellison Case Summary

On February 4, 2015, attorney Brian Ellison on behalf of petitioner, Gary Debaun and Jeffrey Geldens on behalf of the respondent, the State of Florida stood before the Florida Supreme Court to argue under section 384.24 (2) of the Florida Unlawful acts statute, whether the definition of “sexual intercourse” is limited to sex between a man and a woman or if the statute extends beyond the conduct of penile-vaginal intercourse. Following the review of this case, I will begin by presenting the key facts, followed by a summary of the petitioner and respondent’s cases, and finally my analysis and thoughts concerning the case.

In 2011, the State charged Gary Debaun for violating Florida Statute § 384.24 (2) which asserts, it is unlawful

for anyone infected with the human immunodeficiency virus (HIV), who has knowledge of their positive status, and notified of the potential for transmitting the virus to another, to have sexual intercourse with any other person without informing the other person of the existence of the virus and receiving consent to sexual intercourse.

Prior to engaging in sexual activity with Mr. Debaun, the victim requested proof of the petitioner's negative HIV status. Mr. Debaun provided a fraudulent lab report, reportedly signed by his doctor, to the victim indicating his negative status when in fact he is HIV positive. Believing the report of Mr. Debaun’s negative status, the victim engaged in oral and anal intercourse with the defendant, only to later discover his deception.

Brian Ellison took the podium first to present his case on behalf of his client.

The basis of his argument is this, his client’s conduct does not fall under the narrow definition of sexual intercourse referred to in Florida Statute § 384.24 and therefore not prosecutable for his supposed violation. The petitioner’s argument relied on the definition that sexual intercourse, based on to the Florida Supreme Court’s determination of 1926 as well as the legislature’s use of the term, as the “actual contact of the sexual organs of a man and a woman and actual penetration into the body of the latter”. Mr. Ellison argues that the legislature used this definition when adding HIV to the venereal disease law and did not include other forms of sexual conduct because at that time the sodomy law was still in effect and covered all other sexual activity outside of sexual intercourse. His client’s conduct of oral and anal sex with a male partner falls outside the sexual intercourse defined in section 384 and applied more appropriately to the misdemeanor Sodomy law. Subsequently, the 2003 case of Lawrence v. State out of Texas found the misdemeanor Sodomy law unconstitutional, creating a gap in the current prosecutorial system. Mr. Ellison likened the State’s inability to prosecute his client for this violation to the 1971 case of Wilson v. State predicament that left a similar gap in felony prosecution for same-sex rape. The Florida Supreme Court declared the felony sodomy statute

unconstitutionally vague and the legislature, by failing to amend the rape statute to include sexual conduct beyond penile-vaginal intercourse could not prosecute violators for the offense.

Furthermore, Mr. Ellison reiterated, based on the knowledge that sexual conduct outside of heterosexual intercourse falls under different statutes, the legislature fashioned the language this way and with this understanding chose not to broaden the term of “sexual intercourse”.
Once the State presented its case, on rebuttal, the petitioner criticized the State for looking to just one statute to define sexual intercourse as well as the Third District Court’s reliance on a definition from a Merriam-Webster Dictionary when overturning the trial court’s decision. He argues that you must look to the law and other enactments used by the court to get the true meaning of the term. In the petitioner’s view, the court has always recognized the term sexual intercourse to mean reproductive sexual contact and all other sexual activity as sodomy or deviate sexual intercourse and has never had the broad definition that the State says it does.

The questions presented to the petitioner by the court all came back to this, if the legislature was aware, as the court is today, of the circumstances surrounding the spread of the virus, wouldn’t they have enacted the law to include the broadest range of sexual activity? In response to their questions, Mr. Ellison came back to the same argument, the courts and other statutes have always described sexual intercourse as reproductive sexual contact, distinguishing it from other forms of sexual activity. The Petitioner urged the court that it is their job to follow the law as written and it is up to the legislature to amend the law by broadening the term of art of sexual intercourse in order for the State to have the ability to prosecute anyone in a similar situation to his clients.

After the petitioner finished presenting his initial argument, Jeffrey Geldens took the podium to begin his case.

The State’s case is straightforward, the defendant is being prosecuted for penalties under a public health statute, not a criminal one and with that understanding, the statute does not require any interpretive analysis. In 1986, the legislature repealed the venereal disease statute and created the sexually transmissible diseases statute with the exception of HIV. Moreover, in 1988 the legislature added the AIDS program to the statute, which included the provision of consent. Again, the provision within the law requires anyone known to be HIV positive and educated about the risk of transmitting the disease to another must inform the person of their positive status and receive consent before engaging in sexual intercourse. The context in which the legislature composed this law was twofold, one to educate the public on the consequences of high-risk behavior and two, to enforce penalties on those who endanger unwitting victims by not properly informing them of the risk and obtaining their consent prior to engaging in the high-risk behavior. The case before the court epitomizes this sediment, the victim and petitioner engaged in behavior known for spreading this disease and due to Mr. Debaun’s deceptive behavior, put the victim at risk of contracting the disease. The statute’s purpose is not to punish those for doing something unlawful, but to protect

victims from exposure to a potentially deadly disease without their knowledge. The respondent contends that this is the real issue in dispute and when the petitioner falsified his lab results, he deceived the victim into engaging in sexual conduct that has the potential to infect the victim with a sexually transmitted disease.

The State’s argument comes down to this, the term of art “sexual intercourse” is irrelevant to the intent of section 384.24 (2). By reading the language which again establishes, it is unlawful for anyone infected with the human immunodeficiency virus (HIV), who has knowledge of their positive status, and notified of the potential for transmitting the virus to another, to have sexual intercourse with any other person without informing the other person of the existence of the virus and receiving consent to sexual intercourse. The language presented does not only imply vaginal-penile sexual contact, but any sexual activity.

The questions presented to the respondent by the court revolved around the ambiguity of the statute and the fact that back when courts enacted the statute they defined sexual intercourse as sexual contact between a man and a woman. Mr. Geldens countered because the courts do not agree on the interpretation of a statute does not render the statute ambiguous. Additionally, in response to the use of the definition sexual intercourse within statutes and the courts, the respondent argued a known method of AIDS transmittal is through the conduct for which the petitioner is accused and the legislature had this knowledge. He goes on to say the legislature put programs in place to educate people on the risk of such behavior and to penalize those who chose to endanger others by failing to inform them of potential for infection. Mr. Geldens closed by requesting that the court uphold the decision of the Third District Court in this case.

Based on the arguments presented by the petitioner and the respondent, I agree with the Third District Court of Appeals’ decision to reverse the trial court’s decision and define the term sexual intercourse to encompass conduct beyond penile-vaginal intercourse and to include oral and anal intercourse between two men. The trial court, in the Debaun case, misapplied the case of L.A.P. v. State, because the basis of the decision in that case relied on the incest statute’s definition of sexual intercourse, which does not apply to the facts in either case. The case law presented by Mr. Ellison is obviously archaic and in my opinion did not support the petitioner’s argument that the defendant’s behavior did not fall under the guidelines of the statute. Also, the petitioner argues that the legislature presumed to know the Sodomy law was still in effect at the time they created the Sexually Transmissible Diseases law, which covered sexual activity outside penile-vaginal sex; however, the penalty for violating 384.24 (2) of the Sexually Transmissible Diseases law is a felony, yet the violation of the Sodomy law is merely a misdemeanor. The legislature was clearly attempting to prevent the spread of this deadly by imposing a stiffer penalty for the violation.

Conversely, Mr. Geldens’ position that you only need to look to the language of the statute to determine the legislature’s intent is logical if you read it as whole. Although section 384.24 (2) utilized the terms he or she within the statute as recent as 2013, the legislature also used the phrase “to another person” not specifying heterosexual or homosexual intercourse. The statute even states under 384.22 it “intends to provide a program that is sufficiently flexible to meet emerging needs’, the need is to stop this deadly disease from spreading and at the time of the statutes creation the largest demographic affected by this disease was the homosexual population. For the reasons I have outlined above I agree with the decision of the Florida Supreme Court in the case of Debaun v. State.