The difference in changing a baby's diaper and fondling a 12-year-old has become murky in Arizona. The state Supreme Court ruled last week that intentionally or knowingly touching the private parts of a child under the age of 15 is now an automatic felony.
The decision in State vs. Holle found that if defendants can show that they were not "motivated by sexual interest," they can escape being labeled sex offenders. But then the burden of proof is on the accused party to prove they are innocent, not for the state to prove they are guilty. This move means the accused party has to demonstrate that he or she was acting in a non-sexual manner.
Matt Brown wrote in Mimesis Law quotes of the two justices who dissented with one another:
"Such a defenseâ¦ 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."
This behavior could be something as innocuous as helping a child get into his or her bathing suit. The new Arizona law that caused this decision is deliberately keeping the motives, intentions, and actions vague, writes Lenore Skenazy at Reason.com.
"We cannot and will not assume that the state will improperly prosecute persons who, though perhaps technically violating the terms of broad statutes , clearly engaged in reasonable, acceptable, and commonly permitted activities involving children."
Brown adds that 90% of all court cases are determined by plea bargains. Now it will come down to attorneys saying to a citizen that the defendant can prove he or she is not a sex offender or the citizen can take a plea.
Fordham Law Professor John Pfaff says even if a defendant can prove he or she is not a sex offender, a charge of molesting a young person is something that will follow that person for the rest of his or her life. Prosecutors will be able to use these issues in ways that cannot yet be imagined.
According to Pete Scholz of KPNX-TV, the wording of the law does not require that the touching of a child be sexual in nature, which can result in innocent people being labeled criminals.
Arizona State University professor Paul Bender said the ruling is confusing.
"And there also could be a case where it's not clear whether there was a sexual intent or not," Bender said. "And under this decision, when it's not clear, the defendant would be guilty, and that's wrong."
Claire Gillespie, writing for SheKnows, says the Arizona ruling states that any physical contact with a young person's genitalia should be classified as sexual abuse or molestation whether or not there was any sexual intent. Sexual contact in the ruling means direct or indirect touching, manipulating, or fondling of genitalia, anus, or female breast by any part of the adult's body, any object, or by cajoling a young person to engage in such acts.
Legal analyst Monica Lindstrom says this means that parents could be prosecuted for changing their children's diaper or bathing their child (though prosecutors are unlikely to indict parents for changing their children's diapers). Still, some parents are asking what will happen if non-parental persons change a baby's diaper. Non-parental diaper helpers could include day care providers, relatives, or special-needs teachers.
The decision came after a stepfather was convicted of molesting his stepdaughter. When he appealed his case, the justices stepped further and forbade the intentional touching of genitalia and all the rest of the innocent and necessary touching included in the justices' decision, notes Andrea Frazier reporting for Romper.