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

[Valmy]

Capetan! Glad to see you!

[ulmont]

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.

Let me go back to the more fundamental point:  Where in the words that the Arizona legislature wrote do you see anything making intent an element rather than a defense?

[Capetan Mihali]

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.

Let me go back to the more fundamental point:  Where in the words that the Arizona legislature wrote do you see anything making intent an element rather than a defense?

I don't; they wrote a constitutionally inadequate statute.

[ulmont]

Let me go back to the more fundamental point:  Where in the words that the Arizona legislature wrote do you see anything making intent an element rather than a defense?

I don't; they wrote a constitutionally inadequate statute.

What makes that statute constitutionally inadequate that would not also bar the following definition of battery (consider medical procedures):

"(a) A person commits the offense of simple battery when he or she either:

(1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or

(2) Intentionally causes physical harm to another."

[The Minsky Moment]

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?

That's a very difficult question to answer.  Not sure how you'd collect data for that.

It would have a significant impact on motions for acquittal.

[Grey Fox]

Slate is always right, that's why Languish hates it.

[alfred russel]

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.

Laws need to be applied with the common sense of the judiciary. Even with the wording above, if you want to get technical about it, wouldn't that cover a doctor performing a medical procedure on a child intended to enable sexual function later in the child's life?

If judges decide to act without common sense, I don't think that is the fault of the legislature.

[ulmont]

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.

Laws need to be applied with the common sense of the judiciary. Even with the wording above, if you want to get technical about it, wouldn't that cover a doctor performing a medical procedure on a child intended to enable sexual function later in the child's life?

1) No.
2) There's a separate medical procedure defense in 13-1407.A anyway.

[Berkut]

The problem, or a problem, as I see it, with any law being defended on the basis of hoped for prosecutorial, judicial, or jury restraint is that in the current criminal justice system, so much "justice" is done outside a trial court anyway. The vast majority of sentences or arranged plea deals, and shitty laws like this give prosecutors incredible power to force shitty plea bargains, because hey look, the law says right there that you did something illegal - you really want to risk some jury or judge "interpreting" that law to save you?

[Ideologue]

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.

Laws need to be applied with the common sense of the judiciary. Even with the wording above, if you want to get technical about it, wouldn't that cover a doctor performing a medical procedure on a child intended to enable sexual function later in the child's life?

1) No.
2) There's a separate medical procedure defense in 13-1407.A anyway.

You know, I'm actually reasonably sure the medical procedure defense, as worded, would cover a baby's diaper change.  That's an "emergency" "medical" procedure that comprises an "act... of administering a recognized and lawful form of treatment that was reasonably adapted to promoting the physical or mental health of the patient..." after all, and going to an ER with a poopy diaper would be somewhat damaging, if not outright legitimately dangerous, for the kid.

Anyway, the shifted burden is ridiculous.  I'm also kind of surprised that Yi's point wouldn't have been incorporated into the decision.  "Sexual contact" automatically implies an intent for sexual gratification, which is indeed absent in 99.9999% of all parent or in loco parentis actions that happen to involve an infant's swimsuit area.  (Presumably there is AZ caselaw that contradicts this?)  Either way, Mihali is right, too, and it's unconstitutional.

Maybe it's some kind of crypto-Leninist heighten-the-contradictions effort to get thousands of people arrested, convicted, and placed on a sex offender registry in order to finally destroy the registry from the inside?

[CountDeMoney]

Maybe it's some kind of crypto-Leninist heighten-the-contradictions effort to get thousands of people arrested, convicted, and placed on a sex offender registry in order to finally destroy the registry from the inside?

Good point;  maybe this is an opportunity to finally stack SORs with all the MILFs and soccermoms we never seem to see enough of during database searches. There's only so many teachers, you know.

[Martinus]

The problem, or a problem, as I see it, with any law being defended on the basis of hoped for prosecutorial, judicial, or jury restraint is that in the current criminal justice system, so much "justice" is done outside a trial court anyway. The vast majority of sentences or arranged plea deals, and shitty laws like this give prosecutors incredible power to force shitty plea bargains, because hey look, the law says right there that you did something illegal - you really want to risk some jury or judge "interpreting" that law to save you?

Yeah. Especially in a country that submits selection of judges to the will of the mob. *shudders*

[alfred russel]

1) No.
2) There's a separate medical procedure defense in 13-1407.A anyway.

If the answer is so clearly no, then why did they need to write in a defense?

Anyway, sounds to me like Jerry Sandusky picked the wrong career--if he was a doctor instead of a defensive coordinator there would have been no flag on the play.

[Martinus]

Also, Ide!

[jimmy olsen]

Ide! Long time,  no see!