Right on the tail of my recent post about Arizona ceasing its practice of detaining people in order to ascertain their immigration status, the Internet is blazing with the news that it might be considered a sex crime in Arizona to change your child’s diaper. What gives, Arizona? Today, I’m going to walk you through a few things: one, the utter idiocy of the Arizona Supreme Court decision; two, the fact that it may not necessarily as bad as it sounds; and three, that despite number two, it is something about which we should be concerned. Let’s begin with Arizona equating diaper changing with sexual molestation.
Right on the tail of my recent post about Arizona ceasing its practice of detaining people in order to ascertain their immigration status, the Internet is blazing with the news that it might be considered a sex crime in Arizona to change your child’s diaper. What gives, Arizona? Today, I’m going to walk you through a few things: one, the utter idiocy of the Arizona Supreme Court decision; two, the fact that it may not necessarily as bad as it sounds; and three, that despite number two, it is something about which we should be concerned. Let’s begin with Arizona equating diaper changing with sexual molestation.
The Decision
Yesterday, the Arizona Supreme Court blew a great opportunity to clarify one of the stupidest laws I’ve seen: it is a criminal act to have any form of contact between an adult and a child’s genitals. The law reads, in part, that “any person intentionally or knowingly … touching … any part of the genitals, anus or female breast of a child under fifteen years of age” is potentially a child molester. Before you break out the pitchforks and torches, no, I do not support molestation of any kind. The reason this law is idiotic is not in its goal of protecting children, but in its poor construction (language).
This is the only such law in the nation that does not require that the touching (whether direct or indirect) be done with sexual intent. In other words, it literally criminalizes such innocent acts as changing your baby’s diaper or giving your child a bath. When ruling on Arizona v. Holle yesterday, the Court could have clarified that sexual intent should be part of the law. It didn’t.
Holle had been convicted of improperly touching his 11-year-old step-granddaughter. Despite testimony to the contrary, the trial court found Holle guilty of sexual abuse and sentenced him to two prison terms: five years for sexual abuse and ten years for molestation. Holle went on to appeal his conviction and was successful. His argument was quite logical: minus the element of sexual intent, “it would mean that parents and other caregivers commit those crimes whenever they change an infant’s diaper and bathe or otherwise clean a child’s genitals.” He further argued that “pediatricians and other medical providers would likewise violate those laws.”
Then, the Arizona Supreme Court got involved and things went all types of crazy. The Court held that Holle’s apparent lack of sexual intent was only an affirmative defense (an argument that, if proven, defeats or lessens the prosecutor’s charges) and that Holle would need to prove by a preponderance of evidence that he actually did lack sexual intent. This was decided by a 3-2 vote.
The justices in the majority refused to “rewrite the statutes to require the state to prove sexual motivation, when the statutes clearly contain no such requirement.” They further stated that such a decision does not impact anyone’s due process, thanks to the affirmative defense. This is a stupid thing for any judge to say. The rule is “innocent until proven guilty” and this most certainly creates a due process issue.
The dissenting justices stated that this decision has “shifted to the accused the burden of proving the absence of the very fact—sexual motivation—that distinguishes criminal from innocent conduct.” Their argument against the ruling is the most logical.
Since “No one thinks that the legislature really intended to criminalize every knowing or intentional act of touching a child in the prohibited areas, 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.”
The Maybe It’s Not So Bad
However, the three justices who thought this travesty was a good idea simply point to the likelihood that “prosecutors are unlikely to charge parents” for changing diapers and bathing children. And, even if the prosecutors did so, there’s always the affirmative defense of no sexual intent. All the parents or caregivers have to do is assert that they were using “their fundamental, constitutional right to manage and care for their children.”
What?! You read it correctly. Arizona’s Supreme Court essentially just said, “Trust the prosecutors; they won’t ever err in their judgement (whether unintentionally or not).” How comforting! And what utter crap. Prosecutors are people, too. They make mistakes. Witnesses make mistakes. Police make mistakes. These mistakes, while ultimately correctable, don’t come without a cost.
While the legal system does its thing and decides whether John or Jane Q. Public is an innocent parent/caregiver or a deviant pedophile, where do you think John or Jane is? Most likely, not with their children, given the charges. Quite possibly, even in jail awaiting trial or worse, prison waiting for their appeal. In the meantime, their children are (hopefully) staying with loving relatives, but could also be in foster care.
If/when John or Jane is finally exonerated, they still face the fact that many people will not believe that they are truly innocent. Jobs may be lost; friends may leave and even family members may turn away. Let’s not forget that, unless John or Jane is a single parent, there is also the issue of their spouses. In other words, human nature being what it is, the spouses may wonder if only a little, whether the “crime” actually happened.
The Why We Should Be Concerned
As if the above doesn’t give us ample cause for concern, John Pfaff, a Fordham law professor, provides us yet another reason: plea bargains. According to Prof. Pfaff, over 90% of criminal cases end in plea bargains. That is, the defendant agrees (whether guilty or not) to a lesser charge in order to avoid the possibility of losing at trial and facing a greater sentence.
If you are John or Jane and somehow find yourself under arrest, you could quite likely be given the option of a plea bargain. That, or face a life-damaging conviction. As Prof. Pfaff Tweeted, it could end up being “take this plea for the drug deal or we’ll tack on sexual abuse of your child.”
There are other, scarier, forces at work, too. According to a piece by Nicole Flatow on ThinkProgress.org, there are “prosecutors whose bonuses, promotions, and sometimes election are tied to conviction rates and prominent ‘wins’ have perverse incentives to instead score any conviction at all.”
Think about what that means for a moment. If you aren’t concerned, you’re either someone whom the Universe has decreed will never have a brush with the law, or you don’t live in Arizona.
It remains to be seen what, if anything, the U.S. Supreme Court will do with this one.
Source:
If You Change a Baby’s Diaper in Arizona, You Can Now Be Convicted of Child Molestation
Can You Be Convicted of Child Molestation in Arizona for Changing a Baby’s Diaper?
How Prosecutor Win Rates And Informants Drive Wrongful Murder Convictions
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