Be Scared. Be Very Scared

Be Scared. Be Very Scared. To non-lawyers, this blog post may be a little “inside baseball,” but it exemplifies an attempt to punish clearly criminal behavior by casting too wide a net.

Be Scared. Be Very Scared

The issue is Arizona Statute 13-1410 that states: “A person commits molestation of a child by intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age.”  Sexual contact is defined as “any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact.”

This seems clear enough, but statutes are supposed to specifically say what is illegal while not criminalizing completely innocent behavior.  This one does not do that.

If you can envision completely innocent behavior that a statute prohibits, there is a problem.  Read the law, it would criminalize a parent who changes a baby’s diaper and wipes them clean.  The parent would be “intentionally…directly touching or manipulating…genitals or anus…of a child under fifteen years of age.”  But, you say, that is silly.  The law doesn’t intend to make every parent a sex criminal.  No, it doesn’t, but the way it doesn’t is the problem.

The law includes an out.  13-1407 says “It is a defense to a prosecution…that the defendant was not motivated by a sexual interest.”  Easy enough, you say, all I have to do is explain that “I was just changing a diaper; I was certainly not motivated by a sexual interest.”

This, however, turns our law on its head.  The law allows a prosecutor to charge you and bring you to trial, then makes you prove you are innocent.  That is wrong.  It should be the prosecutor’s burden, in every case, to prove you are guilty.  This law does not make the prosecutor prove you had a sexual interest, it makes you prove that you did not.  It is often impossible to prove a negative, as this law requires a person to do.

What do the Courts say, you ask.  Well, the Arizona Supreme Court says this is perfectly fine.  The said “We…will not assume that the state will improperly prosecute persons who, though perhaps technically violating the terms of the broad statutes…clearly engaged in reasonable, acceptable, and commonly permitted activities.”[1]  But, what if you believe you were clearly reasonable, acceptable, and doing something commonly permitted, but a rogue prosecutor (maybe someone who dislikes you or a group you are in, or a religious zealot) disagrees?  This scares me.  Now, instead of the prosecutor having to prove you did something prohibited by the law, you have to prove you didn’t.

Let me be clear.  Child molestation is abhorrent.  But our laws have to clearly say what is prohibited, not allow a prosecutor to decide on his own then make us go through the time, effort, and considerable expense to prove what we did was ok.

Be Scared. Be Very Scared

[1] Arizona v. Holle, CR-15-0348-PR (2016)