by Kevin Daley
Changing a child’s diaper seems more like a punishment than a crime.
In the state of Arizona, it is both.
The Arizona state legislature passed a vaguely-worded law concerning child sexual abuse with language so broad that it unintentionally bans normal parental activities. The statute was upheld by the state supreme court.
The law in question criminalizes any contact between an adult and a child’s intimate areas, as Mark Joseph Stern at Slate explains. The legislature did not specify that such contact need be sexual in nature. Without this element, even benign contact, such as occurs during the bathing of a child or the changing of a diaper, is criminalized by state law.
In one case, Jerry Charles Holle was convicted of molesting his step-granddaughter after she told police he had inappropriately touched and kissed her. The trial court determined that Holle bore the burden of proving his conduct was not driven by a sexual interest. An appeals court ruled this determination incorrect, finding that prosecutors must prove sexual interest or intent at trial. However, since the record was, in their view, replete with evidence of Holle’s sexual intent, the error was harmless. (RELATED: Weekend Circuit: Fight Against Syrian Refugees Falters)
A divided state supreme court ruled that Arizona law criminalizes all contact with a child’s intimate areas. A three-judge majority found that the statute unambiguously excluded the need to demonstrate sexual intent. The judges also explained the law posed no due process issues, since a defendant could raise lack of sexual intent as an affirmative defense at trial. They also deferred to prosecutorial discretion, arguing the state would never bring a criminal case against an adult caring for the child.
“Parents and other caregivers who have changed an infant’s soiled diaper or bathed a toddler will be surprised to learn that they have committed a class 2 or 3 felony,” the dissenters wrote. “They also will likely find little solace from the majority’s conclusion that although they are child molesters or sex abusers under Arizona law, they are afforded an ‘affirmative defense’ if they can prove by a preponderance of the evidence that their touching ‘was not motivated by a sexual interest.’”
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