18 July – THE FLORIDA LEGISLATURE has sometimes been a bit shy when it comes to discussing sex. A state representative was chastised last session for using the word “uterus” on the house floor, and lawmakers recoiled at debating a recent bill to ban bestiality, because children sometimes attend their hearings.by Todd Ruger Herald Tribune
In 1997, Florida legislators made it a felony for an HIV-infected person to have “sexual intercourse” without informing the partner of their infected status, adding the virus to a list of established STDs like gonorrhea, chlamydia and syphilis.
But Florida statutes specifically define sexual intercourse only as vaginal sex between a man and a woman.
Last month, the court of appeal overturned a Bradenton woman’s conviction for exposing her female partner to HIV because the sexual acts were between two women. The law “does not apply to her actions,” the 2nd District Court of Appeal said.
The ruling applies statewide, meaning gays and lesbians cannot be convicted of hiding their HIV status from their sex partners, at least for now. Neither can anyone who only engages in sexual acts that do not fit the state’s legal definition of intercourse — “the penetration of the female sex organ by the male sex organ.”
So when Sarasota County authorities arrested an HIV-positive man this week on charges he had anal and oral sex with a 14-year-old boy, the sexual battery charge may stick, but the HIV charge will not. The HIV charge is a third-degree felony punishable by up to five years in prison.
“It’s a glitch in the statute that nobody noticed before,” said Richard Sanders, a Palm Harbor attorney who represented the Bradenton woman.
To fix it, lawmakers will need to change the statute.
“It’s something that absolutely has to be clarified,” said longtime lawmaker Sen. Mike Bennett, R-Bradenton. “It’s one of those touchy subjects that people don’t want to debate … on this one, I think they just simply missed it.”
About 80 people have been charged under the law in the past decade.
The court of appeal said its ruling “is neither unreasonable or ridiculous; it is merely an application of the statutory language” to the Bradenton woman’s actions, the ruling states.
And one parting shot: “The Legislature may, of course, amend the statute to broaden its application.”
An advocate for HIV health would rather the Legislature just get rid of the law because it dissuades people from getting tested for the virus. “One of the strongest defenses of someone being accused of this crime is that they didn’t know,” said Brian Winfield of Equality Florida.
But Bennett said the law is important to protect Floridians, and he would change the law as soon as he could, possibly as early as a September legislative session.
Not that it will be too easy to do.
HIV was a new subject back when the law was passed, Bennett said, and legislators probably never even considered defining sexual intercourse.
“Everybody knows what sexual intercourse is,” Bennett said. “To put it on paper is very difficult.”