Brian Ellison Case Summary

On February 4, 2015, attorney Brian Ellison on behalf of petitioner, Gary Debaun and Jeffrey Geldens on behalf of the respondent, the State of Florida stood before the Florida Supreme Court to argue under section 384.24 (2) of the Florida Unlawful acts statute, whether the definition of “sexual intercourse” is limited to sex between a man and a woman or if the statute extends beyond the conduct of penile-vaginal intercourse. Following the review of this case, I will begin by presenting the key facts, followed by a summary of the petitioner and respondent’s cases, and finally my analysis and thoughts concerning the case.

In 2011, the State charged Gary Debaun for violating Florida Statute § 384.24 (2) which asserts, it is unlawful

The basis of his argument is this, his client’s conduct does not fall under the narrow definition of sexual intercourse referred to in Florida Statute § 384.24 and therefore not prosecutable for his supposed violation. The petitioner’s argument relied on the definition that sexual intercourse, based on to the Florida Supreme Court’s determination of 1926 as well as the legislature’s use of the term, as the “actual contact of the sexual organs of a man and a woman and actual penetration into the body of the latter”. Mr. Ellison argues that the legislature used this definition when adding HIV to the venereal disease law and did not include other forms of sexual conduct because at that time the sodomy law was still in effect and covered all other sexual activity outside of sexual intercourse. His client’s conduct of oral and anal sex with a male partner falls outside the sexual intercourse defined in section 384 and applied more appropriately to the misdemeanor Sodomy law. Subsequently, the 2003 case of Lawrence v. State out of Texas found the misdemeanor Sodomy law unconstitutional, creating a gap in the current prosecutorial system. Mr. Ellison likened the State’s inability to prosecute his client for this violation to the 1971 case of Wilson v. State predicament that left a similar gap in felony prosecution for same-sex rape. The Florida Supreme Court declared the felony sodomy statute

The State’s case is straightforward, the defendant is being prosecuted for penalties under a public health statute, not a criminal one and with that understanding, the statute does not require any interpretive analysis. In 1986, the legislature repealed the venereal disease statute and created the sexually transmissible diseases statute with the exception of HIV. Moreover, in 1988 the legislature added the AIDS program to the statute, which included the provision of consent. Again, the provision within the law requires anyone known to be HIV positive and educated about the risk of transmitting the disease to another must inform the person of their positive status and receive consent before engaging in sexual intercourse. The context in which the legislature composed this law was twofold, one to educate the public on the consequences of high-risk behavior and two, to enforce penalties on those who endanger unwitting victims by not properly informing them of the risk and obtaining their consent prior to engaging in the high-risk behavior. The case before the court epitomizes this sediment, the victim and petitioner engaged in behavior known for spreading this disease and due to Mr. Debaun’s deceptive behavior, put the victim at risk of contracting the disease. The statute’s purpose is not to punish those for doing something unlawful, but to protect