Legislators Gone Wild

Last September, the Arizona Supreme Court issued a startling decision that expanded the state’s child molestation law to criminalize any contact between an adult and a child’s genitals. Molestation of a child under the statute consisted of “intentionally or knowingly engaging in or causing a person to engage in sexual contact with a child under the age of fifteen years old.” Ariz. Rev. Stat. § 13-1410(A)(2009). The statute further eliminated prosecutors having to prove sexual intent. Instead, an individual accused of child molestation under the new law had the burden of proving that he or she had no sexual intent by a preponderance of the evidence. This shocking decision turned innocent parents and caregivers into “child molesters” under Arizona law. The statute actually criminalized the parental functions of bathing or diapering their own children.

Fortunately for Arizona citizens, reason prevailed and a federal judge ruled that the statue is unconstitutional. Stephen May was convicted under Arizona’s child molestation law in 2007. May was a swimming instructor who was accused of innapropriately touching four of his students. The jury found him guilty of touching the children, but not of touching them sexually because the law did not require that. After being sentenced to 75 years in prison, he appealed the trial court’s conviction and ultimately the Supreme Court upheld it in a 3-2 decision. Yet, a federal appeals court ruled that the statute was unconstitutional because it violates the Due Process Clause of the 14th Amendment.

Under the Due Process Clause, the government carries the burden of proving each element of a crime beyond a reasonable doubt. Yet, the Arizona statute shifted the burden to the defendant in proving he or she did not have a sexual intent when touching a child. That sexual intent is the key element that differentiates child molestation from normal contact. Arizona defended its statute by asserting that a defendant could raise the affirmative defense of “lack of sexual motivation,” just like a defendant could raise an affirmative defense of “self-defense” in a homicide prosecution. Judge Neil Wake did not buy that argument and instead explained that by removing an essential element in a child molestation offense and placing the burden of disproving that element on an accused, a defendant’s Due Process guarantee is violated.

Sexual crimes against children have long been punished in America and rightfully so. But sexual crimes that don’t involve penetration are multiplying at an incredible rate. Although 48 out of 50 states have prohibited intentional touching of children, Arizona was the only state that eliminated the prosecution’s burden of proving the specific intent element of the crime. This increases the possibility of a wrongful conviction for a horrendous crime. Even the Model Penal Code explicitly states that sexual conduct is defined as “any touching of the sexual or other intimate parts of a person for the purpose of arousing or gratifying sexual desire.” ALI, Model Penal Code § 213.4 (2015).

Judge Wake evinced frustration with the three branches of Arizona’s government for creating and enforcing a statute containing an element that describes benign and constitutionally protected behavior just to secure more convictions. “There is a grievous threat to due process of law from making defendants’ disprove their own state of mind for conduct that is not wrongful in any sensible way without a bad mental state.”

The Arizona Supreme Court had the opportunity to strike down the statute, or at the very least read into it an implied sexual intent requirement. Yet it failed to do so, forcing a federal court to straighten the issue out. The statute criminalized diapering and bathing infants and other entirely innocent conduct; more than just innocent, some conduct that is constitutionally protected. Now, finally, parents can go back to caring for their children without fear of prosecution.

Arizona has not been alone in their rush to protect children. Everyone is horrified by the actions of those who perpetrate heinous sex crimes against innocent children. No one ever complains about tougher laws on those who perpetrate child sex crimes because nothing could be more unpopular. But in their rush to appease voters legislators have gotten completely out of control, criminalizing legitimate parental functions, extending Megan’s Law reporting requirements to children young enough that they don’t understand what they are doing, and legislating without thinking through the consequences of their actions. Please let us know below whether you agree.