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
Quote
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.
Child mole!
Also, stop reading slate.
Quote from: HVC on September 19, 2016, 02:30:04 AM
Also, stop reading slate.
My stepfather was visiting and tried to tell me something he read on slate. I shut that shit down fast. :angry:
Quote from: garbon on September 19, 2016, 02:26:43 AM
Child mole!
What would a Tim thread be without an edit in the first post?
Quote from: Peter Wiggin on September 19, 2016, 04:49:59 AM
Quote from: garbon on September 19, 2016, 02:26:43 AM
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.
(https://s-media-cache-ak0.pinimg.com/564x/f7/d9/bb/f7d9bbdcb7ff68c45c9af5a045241a5a.jpg)
The Slate article overstates the decision. The text of the law in question:
Quote13-1410. 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:
Quote13-1407. 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.
Quote from: ulmont on September 19, 2016, 12:47:01 PM
...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.
Quote from: ulmont on September 19, 2016, 12:47:01 PM
The Slate article overstates the decision. The text of the law in question:
Quote13-1410. 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.
Quote from: The Minsky Moment on September 19, 2016, 01:06:43 PM
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?
Quote from: Admiral Yi on September 19, 2016, 01:20:12 PM
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)).
Quote3. "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.
Quote from: ulmont on September 19, 2016, 01:25:34 PM
Quote from: The Minsky Moment on September 19, 2016, 01:06:43 PM
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. :lol: 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.
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.
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.
Capetan! :hug: Glad to see you!
Quote from: Capetan Mihali on September 19, 2016, 01:30:37 PM
I love these "harmless error" type thought experiments. :lol: 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?
Quote from: ulmont on September 19, 2016, 01:42:24 PM
Quote from: Capetan Mihali on September 19, 2016, 01:30:37 PM
I love these "harmless error" type thought experiments. :lol: 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.
Quote from: Capetan Mihali on September 19, 2016, 02:06:59 PM
Quote from: ulmont on September 19, 2016, 01:42:24 PM
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."
Quote from: ulmont on September 19, 2016, 01:25:34 PM
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.
Slate is always right, that's why Languish hates it.
Quote from: ulmont on September 19, 2016, 12:47:01 PM
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.
Quote from: alfred russel on September 19, 2016, 03:07:37 PM
Quote from: ulmont on September 19, 2016, 12:47:01 PM
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.
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?
Quote from: ulmont on September 19, 2016, 03:17:21 PM
Quote from: alfred russel on September 19, 2016, 03:07:37 PM
Quote from: ulmont on September 19, 2016, 12:47:01 PM
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? :P
Quote from: Ideologue on September 19, 2016, 04:22:32 PM
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? :P
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.
Quote from: Berkut on September 19, 2016, 03:29:13 PM
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*
Quote from: ulmont on September 19, 2016, 03:17:21 PM
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.
Also, Ide!
Ide! Long time, no see! :hug:
Quote from: ulmont on September 19, 2016, 01:25:34 PM
Quote from: The Minsky Moment on September 19, 2016, 01:06:43 PM
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?
Quote from: Admiral Yi on September 19, 2016, 01:20:12 PM
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)).
Quote3. "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.
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
Quote from: dps on September 19, 2016, 06:31:08 PM
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.
Quote from: Malthus on September 20, 2016, 09:03:58 AM
Unless there are other parts of the statute that create exceptions, this is an (obvious) problem.
...possibly like the defense I mentioned earlier...
Quote13-1407. 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.
Quote from: ulmont on September 20, 2016, 01:21:24 PM
Quote from: Malthus on September 20, 2016, 09:03:58 AM
Unless there are other parts of the statute that create exceptions, this is an (obvious) problem.
...possibly like the defense I mentioned earlier...
Quote13-1407. 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.
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.
Quote from: The Minsky Moment on September 20, 2016, 04:22:59 PM
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.