The nation’s high court has upheld a criminal conviction that the chief justice of the Arizona Supreme Court openly feared could lead to child molesting charges against parents for routine actions.
Without comment, the U.S. Supreme Court refused Monday to review the conviction of Jerry C. Holle on charges he inappropriately touched his 11-year-old step-granddaughter. That means the Pima County resident will not escape his 10-year prison term on charges of molestation, followed by five years of probation for sexual abuse.
The case is noteworthy because of comments last year by Arizona Chief Justice Scott Bales, who said the precedent set by his court — a precedent the U.S. Supreme Court left intact — poses a danger for parents for something as simple as changing a baby’s diaper.
Under Arizona law, someone can be convicted of child molestation and sexual abuse if a jury believes the touching was knowing or intentional. But the same law also says it is a defense to both crimes that the act was “not motivated by a sexual interest.” Holle’s lawyer said sexual intent was never proven by prosecutors.
In a ruling last year, the Arizona Supreme Court said the law doesn’t put that burden on prosecutors. Also, Justice John Pelander, writing for the court, pointed out that Holle never made such a claim in his defense.
Bales agreed with the majority that, at least in this case, the conviction should stand. But he warned that the wording of the law — making it a crime to knowingly touch the genitals or anus of a child — without showing some sexual interest leaves too much to chance and too much risk that an overzealous prosecutor could put a parent behind bars.
Pelander, however, called it “unpersuasive” that parents and even doctors could be charged with a crime for examining a child’s parts.
