The Volokh Conspiracy

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Volokh Conspiracy

Is "sexual intercourse" limited to genital sex?

|The Volokh Conspiracy |


This is a surprisingly unresolved legal question, which is now before the Florida Supreme Court. The opinion below is State v. Debaun (Fla. Ct. App. 2013), and the issue is whether this statute, first enacted in this form in 1986, covers anal sex and oral sex as well as genital sex:

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 that person has been informed of the presence of the sexually transmissible disease and has consented to the sexual intercourse.

The court split 2-to-1 on the question, and the opinions noted further disagreement among Florida courts; see also the New Hampshire Supreme Court's "oral sex is not adultery" decision, which likewise turned on the definition of "sexual intercourse," and in which the court likewise split on the question.

Thanks to Howard Bashman (How Appealing) for the pointer.

Eugene Volokh is the Gary T. Schwartz Distinguished Professor of Law at UCLA and a Visiting Fellow (Senior Fellow starting May 2024) at the Hoover Institution (Stanford). Naturally, his posts here (like the opinions of the other bloggers) are his own, and not endorsed by any educational institution.