Tuesday, September 20, 2016

Arizona Law: Change a Baby's Diaper You Could Go To Jail

Changed a diaper? In Arizona, you could go to jail for child molestation,
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