By Mark Joseph Stern, Slate
This could be a crime in Arizona.
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.
Nor can they apply medication where needed. It's a poor parent who changes a diaper without washing the area with a handi-wipe or something. Doctors and nurses would also be at risk of prosecution; how are they supposed to react?
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.)
So if a man or woman is charged with child molestation for caring for their child, that parent must be locked up or the child must be surrendered to social services. This is how the Supreme Court protects children? I think a few justices spent too much time in the Arizona sun this summer.
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.