Have you ever changed a babies nappy? Have you even given a young child a bath? If you answered yes to either of these questions then congratulations, under Arizona law you are a child molester!
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?
…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.
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.
…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.