Metro Weekly

HIV-infection case moves forward after Florida Supreme Court defines gay sex as “sex”

Key West man accused of providing sex partner with falsified medical report attesting he did not have HIV

Condoms — Photo: Urusaurus

The case of a Florida man accused of knowingly putting a sexual partner at risk of contracting HIV can now move forward, following a recent decision by the Florida Supreme Court regarding what the legal definition of “sexual intercourse” means.

Gary Debaun, 65, of Key West, was charged in 2011 with knowingly risking infecting his partner with the HIV virus, and even going so far as to forge medical records to say he was not infected, according to The Keynoter.

Under Florida law, it is a crime not to inform a sexual partner of one’s HIV status prior to engaging in sexual intercourse. But Debaun’s lawyers employed a unique argument to get him off: using Florida’s outdated laws defining sex as between a man and a woman to argue that “sexual intercourse” only applies to heterosexual sex.

However, the Supreme Court rejected that argument on Thursday, upholding a ruling by a state appeals court finding Debaun had likely broken the law. That ruling had overturned a lower court’s decision to throw out the case based on a narrow reading of what constituted “sexual intercourse” under the HIV transmission statute.

“The term ‘sexual intercourse’ is commonly understood to broadly refer to several sex acts — including the sexual act at issue here,” the court’s unanimous decision reads. “In certain contexts, the term refers to specifically — that is, more narrowly, to penile-vaginal intercourse.”

The Supreme Court also said that the Florida Legislature had created the statute under which Debaun was charged to reduce the spread of HIV, and wouldn’t have intended the law to be read so narrowly as to exempt gay and bisexual men, who are at higher risk of contracting HIV than heterosexuals.

The Monroe County State Attorney’s Office says it plans to re-introduce the charges against Debaun, who was arrested after his then-partner called police to report that Debaun was HIV-positive but had presented a phony lab report to avoid disclosing his true HIV status. Debaun later admitted he had done so in a recorded phone call with police listening in.

Debaun is expected to be charged with a third-degree felony for unlawful sexual transmission of a disease. The charge carries no minimum prison term, if convicted.

According to court records, Debaun’s then-partner, C.M., had asked Debaun to provide him with a lab report confirming he was not HIV-positive before consenting to sex. Nothing in the court record says C.M. contracted HIV, but Debaun can still be charged under the state statute even if no transmission of the virus occurred.

“We have been anxiously awaiting the Florida Supreme Court’s decision, and now can proceed once again with our prosecution against Mr. Debaun,” Assistant State Attorney Colleen Dunne said in a statement.

John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com