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April 6, 2017

Federal district judge declares unconstitutional Arizona law requiring defendant to prove lack of sexual intent for contact with child

A helpful reader alerted me to this new Slate article, headlined "Federal Judge Rules Arizona’s Diaper Changing Child Molestation Law Is Unconstitutional," reporting on a notable new federal district court ruling concerning a remarkable Arizona criminal law. The start of the Slate article provides the background and links to relevant rulings:

Last September, the Arizona Supreme Court issued a stunning decision interpreting the state’s child molestation law to criminalize any contact between an adult and a child’s genitals. In a 3–2 decision, the court found that the law encompassed entirely innocent conduct, such as changing or bathing a baby.  Arizona, the court held, could convict an adult for touching an infant’s genitals — which carries a prison sentence of five years — without proving sexual intent.  Instead, under the law, the accused had the burden of proving that he had no sexual intent to a jury and by a preponderance of the evidence.  As the dissenters noted, the ruling turned “parents and other caregivers” in the state into “child molesters or sex abusers under Arizona law.”

Reason, however, has now prevailed. Last week, a federal judge ruled that the Arizona statute, as interpreted by the state Supreme Court, is unconstitutional. In a lengthy decision, U.S. District Judge Neil V. Wake cogently explained why the law violates the Due Process Clause of the 14th Amendment, vindicating the two justices who dissented on those grounds in September.  He also reminded Arizona that parents have a constitutional right to care for their children — a right the state may not interfere with by criminalizing hygienic care.

The basic flaw in the Arizona law is pretty conspicuous. According to the statute, an individual is guilty of child molestation if he “intentionally or knowingly … touch[es] … any part of the genitals, anus or female breast” of a child “under fifteen years of age.”  Notice something strange there?  Despite calling itself a child molestation statute, the law does not require the “touching” to be sexual. Thus, a caregiver who “intentionally or knowingly” touches an infant’s genitals while changing his diaper is clearly guilty of violating the law. No other state save Hawaii does not require sexual intent for a child molestation offense.

Arizona defended its statute by noting that the defendant could still assert “lack of sexual motivation” as an “affirmative defense” at trial — requiring him to prove his benign intent “by a preponderance of the evidence.”  The Arizona Supreme Court was satisfied with this loophole, holding that it rendered the law constitutional.  Wake was not so easily fooled. Under the Due Process Clause, Wake noted, the government carries the burden of proving each element of a crime beyond a reasonable doubt.  Yet the Arizona law shifts the burden onto the defendant, forcing him to disprove “the very thing that makes child molestation child molestation.”

That requirement, Wake explained, “violates the Fourteenth Amendment’s guarantees of due process and of proof of guilt beyond a reasonable doubt.”  Due process does not permit Arizona “to remove the essential wrongfulness in child molestation and place the burden of disproving it upon people engaged in a wide range of acts, the vast majority of which no one could believe the state meant to punish.”  Indeed, Arizona cannot lawfully punish “the vast majority” of conduct swept up by the statute.  The U.S. Supreme Court has found that the Due Process Clause “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”  Therefore, Wake concluded, Arizona may not criminalize “constitutionally protected … innocent conduct” such as “diapering and bathing infants.”

April 6, 2017 at 07:01 PM | Permalink


But who will think of the children.

Posted by: Fat Bastard | Apr 6, 2017 9:00:03 PM

Further evidence of the critical role the federal courts play in regulating the administration of criminal law. What's the CEFL on on this? According to SCOTUS, the requirement originated "at least from our early years as a Nation."

Posted by: John | Apr 6, 2017 11:12:01 PM

The feminist lawyer and its male running dogs are out of control.

Posted by: David Behar | Apr 6, 2017 11:17:12 PM

Behar, I'm not sure what you think you are contributing to the dialogue (here or elsewhere on this blog). It'd be a welcome change if you refocused your comments to being even remotely about the substance of the post. Best of luck to you.

Posted by: Supremacy Clause | Apr 7, 2017 12:49:44 AM

Interesting decision. Doug, can you post the opinion from PACER? I'd be interested in your take.

Posted by: federalist | Apr 7, 2017 9:18:59 AM

Supie. I am the ambassador to the lawyer profession from earth. You assholes know shit about nothing. Your profession is the stupidest group of people in our country. You are stupider than Life Skills students, learning to tie their shoes, and to eat with spoons. See the law described above. Would a Life Skills student have voted for that law? No. Only the stupidest people in our country did.

Posted by: David Behar | Apr 7, 2017 10:03:59 AM

So true. They put my son in prison for being a parent.

Posted by: LC in Texas | Apr 7, 2017 11:34:21 AM

I should have explained the situation better, his unfaithful girlfriend used the child to get out of the relationship they had, so she could keep her son. My son was a Mister Mom because he worked at home and she had no maternal instincts. She even had a paternity test to find out who the father of her son was.

Posted by: LC in Texas | Apr 7, 2017 11:43:56 AM

I'm not sure this case is correct under Patterson v. New York. Under Winship, the prosecution does have the burden to prove all elements beyond a reasonable doubt, but the state is free to define those elements and any affirmative defenses. If the state isn't required to prove that contact was sexual in nature, that's not an element of the offense and doesn't have to be proven beyond a reasonable doubt.

Also, was this an AEDPA case?

Don't get me wrong, I think this statute is overly criminalizing, but I'm not sure it's unconstitutional.

Posted by: Erik M | Apr 7, 2017 3:20:23 PM

Erik M. Here it is very slowly. Try to follow.

The terms, element, mens rea, intent, reason, reasonable. Any legal term in Latin. Each is from the 13th Century catechism, a Catholic Church book, no more acceptable to patriotic Americans than any legal term taken from the Sharia in Arabic. I actually read the Sharia, and liked 90% of it. It represents a far superior basis for a legal system than the Catechism. But there is one problem.

We are a secular nation.

Your statement represents an insurrection against our constitution.

Your stupid lawyer gibberish referencing other stupid lawyer gibberish. That is a type of fraud, taught to the British lawyer by the French. Your stupid lawyer gibberish is a form of stealing and misappropriation of the chattel of the tax payer, the rule of law.

Posted by: David Behar | Apr 7, 2017 6:57:13 PM

"Arizona defended its statute by noting that the defendant could still assert 'lack of sexual motivation' as an 'affirmative defense' at trial — requiring him to prove his benign intent 'by a preponderance of the evidence.'”

So, the government no longer has to prove it's case beyond a reasonable doubt? All it need do is assert, whatever, then stand back as the accused attempt to prove his innocence?

We now all live in Bizarro America.


Posted by: Huh? | Apr 8, 2017 6:00:16 PM

Eric makes a good point re Patterson, which is probably why the judge also relied on substantive due process grounds. This brings me back to a point that Eric highlighted which I was trying to note in my original post: there's a non-trivial argument under AEDPA that although quite wrong, this state decision should stand, highlighting fundamental problems with AEDPA deference.

Posted by: John | Apr 9, 2017 9:36:04 AM

What about the thousands of males during infant circumcision or in certain jewish traditions of Metzitzah B'peh (google it yourself), are they prosecuted or held to the same standard?

Posted by: ash | Apr 16, 2017 1:28:55 AM

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