Supreme Court of Florida

____________

No. SC13-2336

____________

GARY G. DEBAUN,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

[March 16, 2017]

CANADY, J.

In this case we consider whether the term “sexual intercourse” as used in the 

context of a statutory scheme enacted to prevent the spread of sexually 

transmissible diseases encompasses conduct beyond penile-vaginal intercourse. 

We have for review State v. Debaun, 129 So. 3d 1089, 1095 (Fla. 3d DCA 2013), 

in which the Third District Court of Appeal held that the term “sexual intercourse” 

as used in section 384.24(2), Florida Statutes (2011), encompasses conduct beyond 

penile-vaginal intercourse, including oral and anal intercourse between two men. 

The Third District certified that its decision is in direct conflict with L.A.P. v. 

State, 62 So. 3d 693, 694-95 (Fla. 2d DCA 2011), in which the Second District 
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held that the term “sexual intercourse” as used in section 384.24(2) applies only to 

“the penetration of the female sex organ by the male sex organ.” We have 

jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because we conclude that the term 

“sexual intercourse” in section 384.24(2) encompasses conduct beyond penilevaginal intercourse, we approve the decision of the Third District in Debaun and 

disapprove the decision of the Second District in L.A.P.

I. BACKGROUND

In 2011, Gary G. Debaun was charged with violating section 384.24(2), 

Florida Statutes (2011), which provides:

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 

such other person has been informed of the presence of the sexually 

transmissible disease and has consented to the sexual intercourse.

The charge arose from a homosexual relationship between Debaun and the 

victim, C.M. Debaun, 129 So. 3d at 1090. Before engaging in sexual activity with 

Debaun, C.M. requested that Debaun provide him with a laboratory report 

confirming that Debaun was not infected with human immunodeficiency virus 

(HIV). Id. Debaun obliged and provided C.M. with a lab report indicating that he 

was HIV negative. Id. But after engaging in oral and anal intercourse with 

Debaun, C.M. learned that Debaun had forged his doctor’s signature on the lab 
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report and was in fact HIV positive. Id. C.M. reported the crime and assisted law 

enforcement in obtaining admissions from Debaun during a controlled phone call. 

Debaun was subsequently charged with violating section 384.24(2), a third-degree 

felony.

1

Debaun moved to dismiss the charge under Florida Rule of Criminal 

Procedure 3.190(c)(4), arguing that the term “sexual intercourse,” which is not 

defined in chapter 384, applies only to penetration of the female sex organ by the 

male sex organ. Id. at 1091. The trial court granted Debaun’s motion to dismiss 

based on the decision of the Second District in L.A.P., 62 So. 3d at 694-95, which 

held that the term “sexual intercourse” in section 384.24(2) applies only to penilevaginal intercourse between a male and a female. Id. The State appealed. Id. 

On appeal, the Third District rejected the holding of L.A.P. and concluded 

that the “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, 

and encompasses the oral and anal sexual activity” in which Debaun engaged with 

the victim. Id. at 1095. The court reversed the order dismissing the charge against 

Debaun and certified conflict with L.A.P. Id. 

 

1. See § 384.34(5), Fla. Stat. (2011) (“Any person who violates s. 384.24(2) 

commits a felony of the third degree . . . . Any person who commits multiple 

violations of s. 384.24(2) commits a felony of the first degree . . . .”).
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In reaching its conclusion that section 384.24(2) applied to conduct beyond 

penile-vaginal intercourse, the Third District ascertained the plain and ordinary 

meaning of “sexual intercourse” from an edition of Webster’s Third New 

International Dictionary that was published the same year that section 384.24(2) 

was enacted, defining “sexual intercourse” as either “heterosexual intercourse 

involving penetration of the vagina by the penis” or “intercourse involving genital 

contact between individuals other than penetration of the vagina by the penis.” Id.

at 1091 (citing Webster’s Third New International Dictionary 2082 (1986)). 

Having determined 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” and recognizing that it would thwart

legislative intent to interpret the statute as prohibiting only penetration of the 

vagina by the penis, the court concluded that Debaun “engaged in acts which fall 

within the plain and ordinary meaning of the term ‘sexual intercourse’ as used in 

section 384.24(2).” Id. at 1091-92.

The Third District found support for its conclusion within the legislative 

history of chapter 384. Prior to the enactment of the Control of Sexually 

Transmissible Disease Act in 1986, chapter 384 was known as the Venereal 

Diseases Act. Id. at 1093. Under the Venereal Diseases Act, it was “unlawful for 

any female afflicted with any venereal disease, knowing of such condition, to have 
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sexual intercourse with any male person, or for any male person afflicted with any 

venereal disease, knowing of such condition, to have sexual intercourse with any 

female.” § 384.02, Fla. Stat. (1985), repealed by ch. 86-220, § 91, Laws of Fla. In 

1986, when the Venereal Diseases Act was repealed and replaced by the Control of

Sexually Transmissible Disease Act, and section 384.02 was replaced by section 

384.24, the application of the Act was expanded from only sexual intercourse 

between “any female . . . with any male person” and “any male person . . . with any 

female” to sexual intercourse between “any person . . . with any other person.” 

Compare § 384.02, Fla. Stat. (1985), with § 384.24, Fla. Stat. (1986). The Third 

District concluded that these changes to the statutory scheme in chapter 384 

evinced the Legislature’s intent to expand the definition of “sexual intercourse” 

beyond conduct involving only a man and a woman. Debaun, 129 So. 3d at 1094. 

In L.A.P., which was decided two years before Debaun, the Second District 

concluded “that sexual intercourse is an unambiguous phrase which must be given 

its plain meaning in the absence of a definition in chapter 384.” 62 So. 3d at 694. 

In order to ascertain the plain meaning of the term, the court relied on the 

definition of “sexual intercourse” provided in section 826.04, Florida Statutes, 

which prohibits incest. The incest statute defines “sexual intercourse” as “the 

penetration of the female sex organ by the male sex organ . . . .” Id. (alteration in 

original) (quoting § 826.04, Fla. Stat. (2008)). Based on this definition, the Second 
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District concluded that the Legislature’s use of the term “sexual intercourse within 

section 384.24(2) is clear[ly] and unambiguous[ly]” limited to heterosexual penilevaginal intercourse, and therefore “the statute d[id] not apply to [L.A.P.’s] 

actions”—“engaging in oral sex and digital penetration of the vagina without 

informing her partner of her HIV positive status.” Id. at 694-95.

During the pendency of Debaun’s appeal, the Fifth District also considered 

the scope of the term “sexual intercourse” in section 384.24(2). See State v. D.C., 

114 So. 3d 440 (Fla. 5th DCA), review dismissed, 123 So. 3d 557 (Fla. 2013) 

(table). Like Debaun, the defendant in D.C. was charged with violating section 

384.24(2) after engaging in oral and anal intercourse with another man without 

first disclosing that he was HIV positive. Id. at 441. D.C. moved to dismiss the 

charge, “contending that sexual intercourse, as that term is used in section 

384.24(2), takes place only when the female sex organ is penetrated by the male 

sex organ and, therefore, the statute did not apply to [his] alleged conduct, which 

involved homosexual oral and anal sex” between two men. Id. The trial court 

granted the motion and dismissed the charge based on the Second District’s earlier 

decision in L.A.P., and the State appealed. Id. at 440-41, 443. 

On appeal, the Fifth District sought to “determine the plain and obvious 

meaning of [the] statute’s text by referring to dictionaries.” Id. at 442. After 

reciting a number of definitions from various dictionaries, the court noted that none 
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of the definitions uncovered by the court or cited by D.C. limited “sexual 

intercourse” to “heterosexual vaginal intercourse.” Id. The Fifth District therefore 

concluded that “the plain and ordinary meaning of the term sexual intercourse, as 

used in section 384.24(2), includes vaginal, anal, and oral intercourse between 

persons, regardless of their gender.” Id. The court stated that limiting the meaning 

of “sexual intercourse” in the statute to penile-vaginal intercourse “would lead to 

‘a result clearly contrary to legislative intent.’ ” Id. (quoting State v. Burris, 875 

So. 2d 408, 410 (Fla. 2004)). In reversing the trial court’s order dismissing the 

information, the Fifth District also certified conflict with the Second District’s 

decision in L.A.P.2 Id. at 443.

II. ANALYSIS

In the analysis that follows, we first consider the plain and ordinary meaning 

of the term “sexual intercourse” and conclude that it is not limited to only penilevaginal intercourse. We then conclude that the plain and ordinary meaning of 

“sexual intercourse” controls in section 384.24(2) because it effectuates the 

legislative intent of the statute. Lastly, in light of the plain and ordinary meaning 

and the legislative intent, we explain why the definitions of “sexual intercourse” 

 

2. D.C. sought review of the decision in this Court based on the certified 

conflict with L.A.P., but because he failed to timely file his notice to invoke this

Court’s jurisdiction, the case was dismissed. D.C. v. State, 123 So. 3d 557 (Fla. 

2013) (table).
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provided in the incest statute and referenced in the case law cited in L.A.P. are not 

applicable to section 384.24(2).

The narrow issue before the Court is whether the term “sexual intercourse” 

as used in section 384.24(2) is limited to conduct involving the penetration of the 

female sex organ by the male sex organ or whether it encompasses conduct beyond 

penile-vaginal intercourse. This presents a question of statutory interpretation, 

which is subject to de novo review. Anucinski v. State, 148 So. 3d 106, 108 (Fla. 

2014).

With regard to questions of statutory interpretation, we have stated:

Our purpose in construing a statute is to give effect to the 

Legislature’s intent. 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. Instead, the statute’s 

plain and ordinary meaning must control, unless this leads to an 

unreasonable result or a result clearly contrary to legislative intent.

Paul v. State, 129 So. 3d 1058, 1064 (Fla. 2013) (quoting Burris, 875 So. 2d at

410). “Where, as here, the [L]egislature has not defined the words used in a 

[statute], the language should be given its plain and ordinary meaning.” Sch. Bd. 

of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So. 3d 1220, 1233 (Fla. 

2009) (second alteration in original) (quoting Fla. Birth-Related Neurological 

Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 686 So. 2d 1349, 1354 (Fla. 

1997)). “When considering the [plain] meaning of terms used in a statute, this 

Court looks first to the terms’ ordinary definitions[, which] . . . may be derived 
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from dictionaries.” Dudley v. State, 139 So. 3d 273, 279 (Fla. 2014) (second and 

third alterations in original) (quoting Trinidad v. Fla. Peninsula Ins. Co., 121 So. 

3d 433, 439 (Fla. 2013)); see also E.A.R. v. State, 4 So. 3d 614, 632 (Fla. 2009); 

Barco v. Sch. Bd. of Pinellas Cnty., 975 So. 2d 1116, 1122 (Fla. 2008). Because 

the Legislature did not define “sexual intercourse” in chapter 384, we look to the 

dictionary in order to ascertain the plain and ordinary meaning of the term.

Webster’s Third New International Dictionary defines “sexual intercourse” 

as both “heterosexual intercourse involving penetration of the vagina by the penis” 

and “intercourse involving genital contact between individuals other than 

penetration of the vagina by the penis.” Webster’s Third New International 

Dictionary 2082 (1993). The American Heritage Dictionary defines “sexual 

intercourse” as “[s]exual union between a male and a female involving insertion of 

the penis into the vagina” and “[s]exual activity that includes insertion of the penis 

into the anus or mouth.” The American Heritage Dictionary of the English 

Language 1606 (5th ed. 2011). Merriam-Webster’s Collegiate Dictionary defines 

“intercourse” as “physical sexual contact between individuals that involves the 

genitalia of at least one person.” Merriam-Webster’s Collegiate Dictionary 652

(11th ed. 2014). Thus, the plain meaning of “sexual intercourse” clearly 

encompass acts beyond penile-vaginal intercourse. Because this Court must apply 

the plain meaning of the term unless doing so would render an absurd result or a 
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result clearly contrary to legislative intent, we turn next to a discussion of the 

legislative intent behind the statute. 

Chapter 384 is known as the “Control of Sexually Transmissible Disease 

Act.” § 384.21, Fla. Stat. (2011). It is contained within Title XXIX of the Florida 

Statutes, which is titled “Public Health.” Section 384.22 explicitly sets forth the 

legislative intent and purpose of the Act as follows:

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) (emphasis added). Within the Act, section 384.24(2) 

seeks to further the Legislature’s intent to reduce the incidence of sexually 

transmissible diseases by making it unlawful for any person with HIV to 

knowingly expose another person to HIV through sexual intercourse without 
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informing the other person of the presence of the disease and obtaining that 

person’s consent to the intercourse and exposure to the disease.

According to the CDC, HIV can be spread through vaginal, anal, and oral 

sex, but anal sex presents the greatest risk of transmitting the infection. Centers for 

Disease Control and Prevention, HIV Transmission,

http://www.cdc.gov/hiv/basics/transmission.html (last visited March 1, 2017). 

Further, although gay, bisexual, and other men who have sex with men represent 

only about 2% of the United States population, they are the population most 

severely affected by HIV. Centers for Disease Control and Prevention, Fact Sheet: 

HIV Among Gay and Bisexual Men (Sept. 2016), 

http://www.cdc.gov/hiv/pdf/group/msm/cdc-hiv-msm.pdf. In 2014, gay and 

bisexual men accounted for the majority (67%) of new HIV infections, as well as 

the majority of all people (55%) living with HIV in the United States as of 2013. 

Id.

When the plain meaning of the term “sexual intercourse”—which includes 

oral and anal intercourse between two men—is applied to section 384.24(2), 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. This is a reasonable result, 
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which gives full effect to the Legislature’s intent to reduce the incidence of HIV. 

Thus, the plain meaning of the term controls in section 384.24(2).

Lastly, we explain why although “[i]n the absence of a statutory definition, it 

is permissible to look to case law or related statutory provisions that define the 

term,” L.A.P., 62 So. 3d at 694 (alteration in original) (quoting State v. Brake, 796 

So. 2d 522, 528 (Fla. 2001)), the definitions of “sexual intercourse” provided in the 

incest statute and referenced in the cases cited by the Second District in L.A.P. are 

not applicable to section 384.24(2).

First, when a court looks to other statutory provisions to define a term that 

lacks its own statutory definition, the provision to which a court looks must be 

related to the provision lacking a definition. “[T]he incest statute addresses ‘the 

violation of generally accepted societal standards involving marriage and sexual 

intercourse between persons related within the specified degrees. Society’s 

interests in prohibiting incest include the prevention of pregnancies which may 

involve a high risk of abnormal or defective offspring.’ ” Beam v. State, 1 So. 3d 

331, 334 (Fla. 5th DCA 2009) (quoting Slaughter v. State, 538 So. 2d 509, 512 

(Fla. 1st DCA 1989)); see also Carnes v. State, 725 So. 2d 417, 418 (Fla. 2d DCA 

1999) (“The obvious purpose of the incest statute is to address the evil of sexual 

intercourse between persons who are related to each other within specific 

degrees.”). Section 384.24(2), which is located in a different chapter and under a 
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different title than the incest statute, addresses a separate evil and is not related to 

the incest statute. 

Second, application of the definition of “sexual intercourse” provided in the 

incest statute (“penetration of the female sex organ by the male sex organ”) to 

section 384.24(2) would fail to give full effect to the statute and the legislative 

intent of chapter 384 by excluding from the statute’s ambit both the type of sexual 

intercourse with the highest risk of communicating HIV and the category of 

individuals accounting for the majority of existing and new HIV infections. 

Application of such a limited definition would exempt from prosecution HIVpositive individuals who knowingly expose their unwitting partners to HIV by 

engaging in penile-anal or penile-oral intercourse. HIV-positive individuals could 

engage in homosexual activity with impunity while those engaging in heterosexual 

activity would need only avoid penile-vaginal intercourse in order to circumvent 

the law. Nothing in the statutory text or context indicates that the Legislature 

intended to reduce the incidence of HIV only among those who partake exclusively 

in heterosexual penile-vaginal intercourse while allowing the incidence of HIV to 

continue to “ris[e] at an alarming rate,” section 384.22, Florida Statutes, among 

those engaging in penile-anal or penile-oral intercourse with a member of the same 

or opposite sex. Such incongruous results would vitiate the intent of the 

Legislature to curtail the spread of HIV.
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Because the incest statute is directed at the prevention of certain pregnancies

there is no reason for the term “sexual intercourse” as used in that statute to 

encompass any act beyond penile-vaginal intercourse. But as used in a statute 

directed at curtailing the spread of HIV—which can be communicated through

vaginal, anal, and oral intercourse, and is in fact most likely to be spread through 

anal intercourse—it would be absurd for the term “sexual intercourse” to apply 

only to the act of heterosexual penile-vaginal intercourse. If the Legislature 

intended to exclude from section 384.24(2) knowing and unconsented exposure to 

HIV through oral or anal sexual intercourse, it could have provided a specific and 

limited definition of “sexual intercourse,” just as it did in the incest statute.

In addition to the incest statute, the Second District in L.A.P. relied on four 

cases in support of its conclusion that the definition of “sexual intercourse” 

provided in the incest statute limits the use of the term in section 384.24(2) to 

penile-vaginal intercourse. One of those cases, Green v. State, 765 So. 2d 910 

(Fla. 2d DCA 2000), did not define “sexual intercourse.” Two of those cases, State 

v. Bowden, 18 So. 2d 478 (Fla. 1944), and Williams v. State, 109 So. 305 (Fla. 

1926), considered the definition of the term as applied to the obsolete crime of 

carnal intercourse with an unmarried female of previous chaste character under the 

age of eighteen years. And the fourth case, Lanier v. State, 443 So. 2d 178 (Fla. 3d 

DCA 1983), decision quashed, 464 So. 2d 1192 (Fla. 1985), merely relied on the 
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definition in Williams. None of those cases compel us to impose a limitation on 

the application of section 384.24(2) to only penile-vaginal intercourse. Further, the 

Second District ignored more recent case law in which the term “sexual 

intercourse” was used to describe homosexual conduct. E.g., Hawker v. State, 951 

So. 2d 945 (Fla. 4th DCA 2007) (using the term “sexual intercourse” throughout 

the opinion to refer to conduct between two males); Grohs v. State, 944 So. 2d 450, 

457 (Fla. 4th DCA 2006) (referring to “sexual intercourse” involving two males).

Finally, we reject the suggestion that the rule of lenity in section 775.021(1), 

Florida Statutes, requires that we adopt the restricted definition of “sexual 

intercourse” urged by Debaun. The rule “that criminal statutes must be strictly 

construed does not require that the words of an enactment be given their narrowest 

meaning or that the lawmaker’s evident intent be disregarded.” United States v. 

Giles, 300 U.S. 41, 48 (1937) (citing United States v. Corbett, 215 U.S. 233, 242 

(1909)). The term “sexual intercourse” is commonly understood to broadly refer to 

various sexual acts—including the sexual act at issue here. In certain contexts, the 

term refers specifically—that is, more narrowly—to penile-vaginal intercourse. 

But in the context of section 384.24(2), “sexual intercourse” unambiguously 

denotes sexual conduct that includes acts of oral and anal intercourse.

III. CONCLUSION
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The term “sexual intercourse” in section 384.24(2) encompasses conduct 

beyond heterosexual penile-vaginal intercourse. We therefore approve the Third 

District’s decision in Debaun and disapprove the Second District’s decision in

L.A.P. to the extent that it conflicts with this opinion.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and POLSTON, JJ., 

concur.

LAWSON, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND 

IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal – Certified 

Direct Conflict of Decisions

Third District - Case No. 3D11-3094

(Monroe County)

Carlos J. Martinez, Public Defender, and Brian Lee Ellison, Assistant Public 

Defender, Eleventh Judicial Circuit, Miami, Florida,

for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Richard L. Polin, Bureau 

Chief, and Joanne Diez and Jeffrey R. Geldens, Assistant Attorneys General, 

Miami, Florida,

for Respondent