Skip to comments.Case overturned because of narrow definition of sex
Posted on 07/17/2011 9:43:26 PM PDT by TheDingoAteMyBaby
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.
But their failure to be more explicit has now crippled a law aimed at protecting people from being exposed to HIV and other sexually transmitted diseases.
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."
Shows the homos knowingly want to engage in reckless sex. Solution, make it a law that homos need an annual check to see if they have aids. Double the punishment for them using the I didn't know defense. As the law stands now, only heterosexual men can be punished. Another double standard against commonsense.
A man and woman will get legally married. One of them will have a sex-change operation, and have his/her sex legally changed. They will stay married.
Now you will have two people of the same sex married legally. Gays will point to this as a reason why they should be able to marry too.
All legislation defending marriage needs to be clear that marriage can only be between someone that is and was always a woman, and someone that is and was always a man. The legislation might also have to be cruel in that those few people who are of an ambiguous sex can never be married.
Either that or small loopholes will allow truckloads of gays to drive through.
But of course this will never happen because:
1) Idiots will claim that DOMA is real simple and shouldn't require any complicated language, or
2) Prudes will claim that they don't want their beautifully crafted laws to be filled with references to trannies, or
3) People who live in caves will claim there is no need to make sure the laws are perfectly clear, because small ambiguities in laws have NEVER led to those laws being so misinterpreted that they ended up having the opposite result of that intended.
florida news ping?
I think this is an easy fix...don’t say “sexual intercourse” in the text of the law. Use another, more inclusive phrase...and of course define it. “Sexual activity”, which could mean exchange of bodily fluids, oral to genital contact, genital-genital contact, anal-genital contact, or the use of sexual toys or vibrators in the pursuit of sexual congress.
Mere manual contact with the genitals and kissing can be left out, if these are determined to not have a dangerous effect upon the health of the none-HIV person.
I mean, come on, this is not rocket science.
of course, kissing will involve the exchange of bodily fluids, so that is why I noted above a specific exemption for mere oral to oral contact.
Some people call this education.
The question is whether the law is working as intended. Perhaps some of the people voting on it meant that it ONLY apply to conventional sex...and that party animals would be on their own.
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