He’s accused of putting partner at HIV risk. First, the court needed to define sex

A 2011 case in which a Key West man is charged with knowingly risking infecting his partner with the HIV virus after forging medical records may move forward now that the Florida Supreme Court has ruled on the legal definition of sex.

Gary Debaun, 65, allegedly risked his partner with the virus that causes AIDS and a legal definition of sexual intercourse can’t get him out of the charge, the Supreme Court ruled Thursday in a six-page decision based solely on whether intercourse is defined as only sex between a man and a woman.

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

The Monroe County State Attorney’s Office plans to revive the case against Debaun, who was arrested Aug. 11, 2011, after his partner called police to report Debaun had known he had HIV but presented a phony lab report that said he wasn’t.

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

Debaun is charged with a third-degree felony for unlawful sexually transmission of a disease. It carries no minimum prison term upon conviction.

Debaun’s then-partner, identified in court records only as 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.

During a recorded phone call with police listening in, Debaun admitted everything, according to prosecutors.

The Supreme Court on Thursday upheld the 2013 ruling by the 3rd District Court of Appeal, which had overturned Judge Wayne Miller’s decision to toss the case based on the defense team’s argument that Florida’s legal definition of sexual intercourse didn’t apply to the same-sex couple’s relations.

But the Supreme Court said the Legislature created the statute to reduce the spread of HIV and wouldn’t have written a law meant to only apply to heterosexuals and ignore the group most severely affected by the disease, gay and bisexual men.

This story was originally published March 20, 2017 at 8:28 AM with the headline "He’s accused of putting partner at HIV risk. First, the court needed to define sex."