PHOENIX β The chief justice of the Arizona Supreme Court is openly worrying that a new ruling will let police charge parents with child molesting for changing a babyβs diaper.
Scott Bales said the majority in the 3-2 decision puts the burden on someone who is accused of intentionally or knowingly touching the genitals or anus of a child of showing that it was not done with a sexual intent.
βParents and other caregivers who have changed an infantβs soiled diaper or bathed a toddler will be surprised to learn that they have committed a class 2 or 3 felony,β Bales wrote in his dissenting opinion on the case. He said there is βlittle solaceβ to parents to find out that after they are arrested, indicted and on trial that they finally have the right to escape conviction and prison by proving the touching βwas not motivated by a sexual interest.β
And whatβs worse, he said, the burden is on the parents to provide that proof.
But Justice John Pelander, writing the majority opinion, brushed aside the possibility that otherwise innocent parents might end up in court.
He said there is no evidence that a parent ever has been charged under this statute. And Pelander said if there were such a case, a court likely would rule the law could not be applied because it would interfere with parentsβ βfundamental, constitutional right to manage and care for their children.β
Anyway, Pelander said, the defendant in this case made no such claim. And he noted that even Bales and Justice Robert Brutinel, who joined in the dissent, acknowledged that, even with the alleged flaws in the law, this conviction should still stand.
But David Euchner of the Pima County Public Defenderβs Office said there is, in fact, at least one such case where a foster parent was indicted and had to stand trial for following a doctorβs orders and checking to see if his foster children were soiling themselves. That man was eventually acquitted after a trial.
βBut his life got ruined,β Eucher said. βIt happened before, it can happen again.β
Euchner said he intends to provide that information to the Supreme Court in hopes the justices will reconsider their ruling.
This case involves Jerry C. Holle, charged with inappropriately touching a young female relative.
The crimes of child molestation and sexual abuse require only that the touching be knowing or intentional. But the law also says it is a defense to both crimes that the act was βnot motivated by a sexual interest.β
Based on that, his attorney argued that jurors should be told that the burden is on prosecutors to prove that any touching was sexually motivated. He also argued the allegations were βblown out of proportionβ and presented testimony from others, including from his daughters, that he never sexually assaulted them or any other children.
The jurors found him guilty and the judge sentenced him to a 10-year prison term for molestation, followed by five years of probation for sexual abuse.
Pelander said the statutes are clear: Someone can be convicted simply with evidence of knowing or intentional touching, with no mention of prosecutors having to prove the reason why.
βStates have broad authority to define the elements of a crime,β Pelander wrote. He said as long as jurors are told they can convict only if prosecutors prove each element of the crime beyond reasonable doubt, βit does not offend due processβ to require the defendant to prove that he is blameless because of some other circumstance β in this case, the defense of lack of sexual motivation.
Pelander also called arguments that parents β and even doctors β could be charged with a crime for examining a childβs private parts βunpersuasive.β
Still, he conceded that perhaps the law is not a model of clarity.