Change a Baby’s Diaper in Az., You Can Now Be Convicted of Child Molestation

[dps]

Unless I'm mistaken it would have a pretty big impact.
ARS 13-205 places the burden of proof of any affirmative defense on the defendant.
So instead of the prosecution having to prove improper motivation beyond a reasonable doubt, now the defendant has to prove proper motivation by preponderance.  That's a very significant shift in proof burdens.

I think you're right about the shift in burden and wrong about impact on the ground.  How many cases do you think have motivation as a viably disputed factor?  And then how many where a finder of fact would give a different result under the different standards?

Seems to me the intent to arouse or satisfy element is already intrinsic to the concept of sexual contact.  I.e., not all contact (such as changing diapers) is sexual contact.

Not as defined in Arizona (ARS 13-1401(3)).

3. "Sexual contact" means any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact.

Seems to me that the problem is how sexual contact is defined in 13-1401(3), not the lack of any mention of intent in 13-1410.

[LaCroix]

I'm with ulmont. off the top of my head, I can't think of a scenario where a defendant charged with sexual molestation is now (actually) less protected by the law

[Malthus]

Seems to me that the problem is how sexual contact is defined in 13-1401(3), not the lack of any mention of intent in 13-1410.

Yup. It expressly states that any touching of certain areas is "sexual contact". There is no qualifying language like "with sexual intent".

Unless there are other parts of the statute that create exceptions, this is an (obvious) problem.

[ulmont]

Unless there are other parts of the statute that create exceptions, this is an (obvious) problem.

...possibly like the defense I mentioned earlier...

13-1407. Defenses
...
E. It is a defense to a prosecution pursuant to section 13-1404 or 13-1410 that the defendant was not motivated by a sexual interest. It is a defense to a prosecution pursuant to section 13-1404 involving a victim under fifteen years of age that the defendant was not motivated by a sexual interest.

[Malthus]

Unless there are other parts of the statute that create exceptions, this is an (obvious) problem.

...possibly like the defense I mentioned earlier...

13-1407. Defenses
...
E. It is a defense to a prosecution pursuant to section 13-1404 or 13-1410 that the defendant was not motivated by a sexual interest. It is a defense to a prosecution pursuant to section 13-1404 involving a victim under fifteen years of age that the defendant was not motivated by a sexual interest.

Right, but consider the difference between:

1. making a sexual intent part of the definition of what "sexual contact" means; and

2. Making all contact an offense, but providing a defense in cases where the defendant wasn't motivated by sexual interest.

The former requires that the prosecutor prove that the defendant *had* sexual intent. The latter requires the defendant to prove that they *didn't* have sexual intent.

Now, with prosecutors reasonably exercising their discretion, no cases of innocently bathing children ought to make it to prosecution or trial; but the latter wording makes it more likely that prosecutors not reasonably exercising their discretion could cause problems.

[The Minsky Moment]

That's my argument with ulmont and lacroix.  They don't seem to think a very large swing in proof burden matters.  I don't agree with that premise. I also think the fact that the law is written allows prosecutors to indict without having any evidence at all of improper motivation increases the risk of abusive prosecution or coercion.

[Malthus]

That's my argument with ulmont and lacroix.  They don't seem to think a very large swing in proof burden matters.  I don't agree with that premise. I also think the fact that the law is written allows prosecutors to indict without having any evidence at all of improper motivation increases the risk of abusive prosecution or coercion.

Yup, my read as well.