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

[jimmy olsen]

Languish Law Talkers, is this decision as crazy as it sounds?

Embedded links can be found here.
http://www.slate.com/blogs/xx_factor/2016/09/16/arizona_child_sexual_abuse_law_guts_due_process_for_parents_and_caregivers.html

If You Change a Baby's Diaper in Arizona, You Can Now Be Convicted of Child Molestation

By Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

The Arizona Supreme Court issued a stunning and horrifying decision on Tuesday, interpreting a state law to criminalize any contact between an adult and a child's genitals. According to the court, the law's sweep encompasses wholly innocent conduct, such as changing a diaper or bathing a baby. As the stinging dissent notes, "parents and other caregivers" in the state are now considered to be "child molesters or sex abusers under Arizona law." Those convicted under the statute may be imprisoned for five years.

How did this happen? A combination of bad legislating and terrible judging. Start with the legislature, which passed laws forbidding any person from "intentionally or knowingly ... touching ... any part of the genitals, anus or female breast" of a child "under fifteen years of age." Notice something odd about that? Although the laws call such contact "child molestation" or "sexual abuse," the statutes themselves do not require the "touching" to be sexual in nature. (No other state's law excludes this element of improper sexual intent.) Indeed, read literally, the statutes would seem to prohibit parents from changing their child's diaper. And the measures forbid both "direct and indirect touching," meaning parents cannot even bathe their child without becoming sexual abusers under the law.

Arizona's Supreme Court had an opportunity to remedy this glaring problem. A man convicted under these laws urged the justices to limit the statutes' scope by interpreting the "touching" element to require some sexual intent. But by a 3-2 vote, the court refused and declared that the law criminalized the completely innocent touching of a child. The majority declined to "rewrite the statutes to require the state to prove sexual motivation, when the statutes clearly contain no such requirement." Moreover, the court held that the laws posed no due process problem, because those prosecuted under the statute could still assert "lack of sexual motivation" as an "affirmative defense" at trial—one the defendant himself must prove to the jury "by a preponderance of the evidence." As to the risk that the law criminalizes typical parental tasks, the majority shrugs that "prosecutors are unlikely to charge parents" engaged in innocent conduct. (This "just trust the prosecutors" dodge doesn't always work out so well in Arizona.)


In a searing dissent, two justices pointed out the most obvious flaw of this logic: It renders the laws unconstitutional. "No one thinks that the legislature really intended to criminalize every knowing or intentional act of touching a child in the prohibited areas," the dissent explains. "Reading the statutes as doing so creates a constitutional vagueness problem, as it would mean both that people do not have fair notice of what is actually prohibited and that the laws do not adequately constrain prosecutorial discretion"—a requirement under the Due Process Clause of the 14th Amendment.


The majority responds that any potential vagueness problem is remedied by the fact that defendants can attempt to prove their innocent state of mind as an affirmative defense. Not so, the dissent retorts: By requiring the defendant to prove his innocence (instead of requiring the state to prove his guilt), Arizona has "shifted to the accused the burden of proving the absence of the very fact—sexual motivation—that distinguishes criminal from innocent conduct." That, too, runs afoul of due process by "criminalizing a broad swath of indisputably innocent conduct but assigning to defendants the burden of proving their conduct was not criminally motivated."


Bizarrely, the majority insists that if prosecutors did charge parents for changing their child's diaper, they could argue that they were exercising "their fundamental, constitutional right to manage and care for their children." This alleged defense is cold comfort. As Matt Brown notes at Mimesis Law, Arizona's sentencing laws are so stringent—and state courts are "so unwilling to dismiss sex charges based on as-applied constitutional challenges" before trial and conviction—that innocent parents will "sit in prison for quite some time" before a higher court vacates their sentence on constitutional grounds.


Equally puzzling is the majority's assertion that parents can still present their innocence as an "affirmative defense" in court. Even if this strategy works, the Arizona laws will still have arguably intruded upon their fundamental right to "care for their children" without state interference. After all, as the dissent notes, such a defense "does not mean that a crime has not occurred, but instead that the miscreant may avoid 'culpability' by persuading the factfinder that the 'criminal conduct' should be excused." And this relief would likely only come after a lengthy, expensive, and reputation-tarnishing trial.


As Fordham law professor John Pfaff explains, the majority's logic has one final defect: It utterly ignores the reality of plea bargaining, which is how more than 90 percent of criminal cases in America are resolved. Given the immense expense and hassle of a trial, many defendants are pressured into striking a deal with a prosecutor, trading a lighter sentence for an admission of guilt. Arizona prosecutors can now dangle the threat of a probable child molestation conviction to coerce any parent of a young child into taking a plea deal on unrelated charges. With the state Supreme Court's help, Arizona's child molestation laws have been weaponized into a tool for prosecutorial harassment, allowing the state to target any parent or caregiver—out of spite or malice, or simply to boost their conviction rates. This terrible decision has gutted constitutional rights and turned many of the state's residents into unknowing criminals. Barring intervention by the U.S. Supreme Court, due process has now been suspended for Arizona's parents and caregivers.

[garbon]

Child mole!

[HVC]

nana nana nana

Child mole!

[HVC]

Also, stop reading slate.

[garbon]

Also, stop reading slate.

My stepfather was visiting and tried to tell me something he read on slate. I shut that shit down fast.

[Eddie Teach]

Child mole!

What would a Tim thread be without an edit in the first post?

[HVC]

Child mole!

What would a Tim thread be without an edit in the first post?

they should take away his ability to do that. would at least make his threads more entertaining.

[garbon]

[ulmont]

The Slate article overstates the decision.  The text of the law in question: 

13-1410. Molestation of a child; classification
A. A person commits molestation of a child by intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age.
B. Molestation of a child is a class 2 felony that is punishable pursuant to section 13-705.

The Arizona Supreme Court held that ARS 13-1410 did not include as an element language to the effect of "with the intent to arouse or satisfy the sexual desires of either the child or the person" (as many states do add to their child molestation offenses; xref OCGA 16-6-4).   And it doesn't; that element is nowhere to be found in ARS 13-1410.

And then the Arizona Supreme Court went on to say that the separate defense of ARS 13-1407.E is a defense:

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.

The Arizona Supreme Court declined the invitation to take the defense set out in ARS 13-1407 and graft it onto ARS 13-1410 when it clearly is not there.  There is an explicit analogy here to Arizona's assault statute, which also would cover doctors except for the affirmative defense of consent.

...while this does shift the burdens of proof in a technical sense for the lack of sexual interest, I have a hard time imaging a case where the different burdens would change the result.

Finally, I don't understand why this article is pointing the finger at the Arizona Supreme Court and not the Arizona legislature, which drafted these statutes and clearly did not put in an element many other states have in the child molestation offense.

[The Minsky Moment]

...while this does shift the burdens of proof in a technical sense for the lack of sexual interest, I have a hard time imaging a case where the different burdens would change the result.

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.

The other issue, alluded to in the OP, is that the law as written permits prosecutors to charge indictments without any allegation of improper motivation, and not face a motion to dismiss the indictment.

[Admiral Yi]

The Slate article overstates the decision.  The text of the law in question: 

13-1410. Molestation of a child; classification
A. A person commits molestation of a child by intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age.
B. Molestation of a child is a class 2 felony that is punishable pursuant to section 13-705.

The Arizona Supreme Court held that ARS 13-1410 did not include as an element language to the effect of "with the intent to arouse or satisfy the sexual desires of either the child or the person" (as many states do add to their child molestation offenses; xref OCGA 16-6-4).   And it doesn't; that element is nowhere to be found in ARS 13-1410.

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.

[ulmont]

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.

[Capetan Mihali]

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?

I love these "harmless error" type thought experiments.   How on earth can you know how many would come out differently?  And "one" really ought to be enough of a number where fundamental liberties and serious criminal punishment are concerned.

[Capetan Mihali]

FWIW, from what I've seen child sex assault cases often involve fathers or men acting in a parental role (mother's boyfriend, stepfather, etc.), and very much concern the grey area between appropriate touching in the course of child-rearing (not just changing diapers -- think about hugging or inspecting a cut or something) and lascivious groping.

Having an intent requirement versus having an affirmative defense on this issue would, I expect, have plenty of practical implications, especially in the close cases that actually do get to a factfinder.

[Martinus]

I am surprised to admit Timmy and Slate are right. Based on the statute posted, this is pretty fucked up. Correction by prosecutorial or judical self-restraint is dubious especially in Arizona which is not known for its rule of law and respect of individual liberties.