another ridiculous Arizona law
Every Arizona
parent, grandparent,nanny or caretaker who has changed a baby's diaper or given
their toddler a bath could be charged with a felony, according to a
legal interpretation of the state's child-molestation laws.
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.
The Arizona
Supreme Court issued a stunning and horrifying decision, 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.
The Arizona Supreme Court in a 3-2 split decision had an
opportunity to remedy this glaring problem. They said the state Legislature
intentionally did not include intent in its definition of molestation, said the
state is not required to prove intent in such cases, and agreed that a
parent touching a child's genitals as part of a normal diaper change or a
physician conducting an examination of a child is molestation under their
interpretation of the law.
A man or woman convicted
under these laws urged the justices to limit the statutes’ scope by
interpreting the “touching” element to require some sexual intent. 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 means the court will render a just decision. doesn’t always work out so well in Arizona.) Source Related
