Constitutional Law

Arizona Supreme Court decision on intent makes child diapering a potential crime, dissent argues

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An Arizona Supreme Court decision interpreting the state’s child molestation statute is bad news for caregivers, according to a dissent that is attracting press attention.

Parents in Arizona who change an infant’s soiled diaper or bathe a toddler are committing a felony as a result of last week’s 3-2 decision (PDF), the dissenters argued in Holle v. Arizona. The dissent convinced Slate, which called the majority opinion “stunning and horrifying.”

The Arizona Supreme Court majority held that prosecutors need not prove that a defendant who is prosecuted for child molestation or child abuse was motivated by a sexual interest.

The molestation and child-abuse laws do not require proof of sexual interest as an element of the crime, but they allow a defendant to raise lack of a sexual-interest motivation as an affirmative defense, according to the majority opinion. “The statutes are clear and unambiguous,” the majority said. “We must apply those statutes as written.”

The majority rejected the defendant’s contention that the laws violate due process. The defendant’s “bare assertion that, absent a sexual motivation element, [the statutes] will hypothetically lead to absurd prosecutions does not warrant ignoring the plain language of the subject statutes,” the majority said. “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.”

If prosecutors did charge parents for changing diapers, an as-applied challenge to the law “would likely have merit in light of parents’ fundamental, constitutional right to manage and care for their children,” the majority said.

The two dissenters concluded that the majority’s reading of the statutes creates a vagueness problem that renders them unconstitutional.

Slate noted Fordham law professor John Pfaff’s Twitter comments on the decision. He warned that the majority ignores the power prosecutors can wield in plea bargaining by threatening prosecution under the statutes. “If I owned a day care center” in Arizona, he wrote, “I’d be closing down and moving to another state.”

The County Attorney’s office in Maricopa County, Arizona, said in a a press release after the decision that prosecutors would never consider filing charges against a parent tending to a child’s hygiene or medical needs.

“It is important for our community to understand no parent has ever been charged with a crime for simply changing a diaper, bathing a child, or tending to their medical needs, and this decision does not change that,” County Attorney Bill Montgomery said in the press release. “It is incredibly insulting to believe any prosecutor reviewing a case for charging would not be able to tell the difference between an adult taking proper care of a child and the molestation of a child victim.”

Updated on Sept. 23 to include information from the Maricopa County Attorney’s press release.

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