Mimesis Law
30 June 2022

Prosecutors Would Never Do Something Like That

September 16, 2016 (Fault Lines) — In Arizona, the legislature for some reason decided to define sexual abuse and molestation of a child in such a way that intentionally or knowingly touching the genitals or anus of a child or the breast of a female younger than fifteen is a felony. That should come as no surprise to anyone who is remotely familiar with Arizona, as the one thing the legislature is good at is passing the broadest and most Draconian criminal laws they can imagine.

What might come as a surprise is that, thanks to the Supreme Court of Arizona’s opinion in State v. Holle, the terms of the statute are to be applied literally. According to the court, the defense that there was no sexual motivation is one the defendant must prove by a preponderance of the evidence. The excellent dissent in the case highlights the obvious problem:

Parents and other caregivers who have changed an infant’s soiled diaper or bathed a toddler will be surprised to learn that they have committed a class 2 or 3 felony. They also will likely find little solace from the majority’s conclusion that although they are child molesters or sex abusers under Arizona law, they are afforded an “affirmative defense” if they can prove by a preponderance of the evidence that their touching “was not motivated by a sexual interest.” Such a defense, as the majority notes, does not mean that a crime has not occurred, but instead that the miscreant may avoid “culpability” by persuading the factfinder that the “criminal conduct” should be excused.

Perhaps even more concisely, the dissent later frames the issue as follows:

My difference with the majority turns on a fundamental question: may the state, consistent with due process, sweepingly criminalize a broad range of conduct embracing both innocent and culpable behavior and assign to defendants the burden of proving their innocence?

There’s a special sort of insanity about the relationship between Arizona’s lawmakers and the courts. The lawmakers are crazy to start. They’ve proven over and over again that they’re incapable of controlling themselves. They couldn’t avoid hysteria and draft reasonable, limited laws when it comes to things that frighten them if their lives depended on it.

As for what they passed regarding sex abuse and molestation, it seems they’re either too stupid to realize what they’ve done or they’re pretty sure prosecutors wouldn’t target anyone who matters to them. I find it hard to believe none of them have ever had children or know anyone who’s had children, or that they’re all so sheltered from the reality of the system that they don’t believe the tremendous power they’ve given prosecutors could be abused.

The courts, on the other hand, should know better. Our legislature is out there passing terrible laws as if they were paid by the injustice. It’s impossible that three intelligent justices don’t see the problem with the laws they’re upholding. The courts, instead of keeping our lawmakers honest, have instead opted to craft ostensibly thoughtful and well-reasoned opinions allowing the legislature to do whatever ridiculous and often horrible things pop into their heads.

One of the more concerning parts about Holle is how calmly and rationally the court justifies making every parent in Arizona a sex offender tasked with proving his or her innocence should a prosecutor decide to ruin his or her life with charges. What makes it worse is how much support they have for doing so. The statutes in question do just list mental states of intentionally or knowingly, and a lack of sexual motivation does just appear in a separate law listing defenses. The court’s statutory interpretation might be sound, and there are decades of state and federal cases arguably condoning the sort of burden shifting the statutes accomplish as interpreted.

Perhaps the most disturbing part about the opinion is the majority’s reliance on prosecutorial discretion to seemingly assuage any uneasy feelings someone might have about a law that would presumptively put every Arizona parent on the sex offender registry if it was to be strictly enforced. The court’s analysis is a perfect example of the sort of fiction courts here seem to believe, or at the very least pretend to be the case, when it comes to prosecutors not behaving the way they’ve shown time and time again that they’re going to behave:

Holle’s bare assertion that, absent a sexual motivation element, [the laws] will hypothetically lead to absurd prosecutions does not warrant ignoring the plain language of the subject statutes. 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.

The court then cites Ethical Rule 3.8, a prosecutor’s responsibility of a minister of justice and not simply that of an advocate, apparently completely unaware of the fact that news stories abound of Arizona prosecutors pushing the envelope of the ethics rules and beyond, often with impunity, and that the most powerful prosecutor in the state was disbarred for abusing his power not too long ago.

The majority’s firm language gives the impression they’re trying to convince themselves it’ll all be okay:

Finally, the dissent repeats Holle’s hypothetical, unrealistic concerns about subjecting to criminal prosecutions parents or other child caregivers changing diapers. But if a prosecution actually were to result from such innocent behavior (no such case has been cited), an “as applied” constitutional challenge would likely have merit in light of parents’ fundamental, constitutional right to manage and care for their children.

It’s obvious the justices of the court aren’t a group with a lot of criminal defense experience. If they were, they’d see that concerns about overreaching prosecutions are anything but hypothetical and unrealistic, but rather the sort of thing that defense lawyers battle daily. Moreover, the sentencing laws are so harsh and courts statewide are so unwilling to dismiss sex charges based on as-applied constitutional challenges short of trial and a conviction that that most of the innocent victims of our laws will plead guilty or sit in prison for quite some time waiting to clear their names following an unconstitutional conviction.

The majority’s opinion can really be summed up as “just trust them.” Given the sad reality of how things work here, that’s a terrifying proposition.

25 Comments on this post.

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  • David Lawrence
    17 September 2016 at 1:29 am - Reply

    I think we all know the intent of this law, if not in the planning then in retrospect. It is to give agents of the state, in particular prosecutors, the power to persecute. The victims will be the “usual suspects” – ethnic minorities, political dissidents and other social undesirables.

  • Sephia
    17 September 2016 at 7:29 pm - Reply

    Wouldn’t this also eliminate many medical examinations?! Children’s and teen’s breasts and genitals are assessed, medically examined and even have surgeries performed upon them.

    Get a parent who dislikes the doctor and they could easily sue as well!

    • Ernie Menard
      18 September 2016 at 6:11 am - Reply

      Sephia: That is not an issue either. The law provides an affirmative defense. Pediatric health care practitioners will just have to buy an additional insurance policy to cover the possible legal costs and costs of an extended vacation.

      • Ben of Houston
        19 September 2016 at 9:43 pm - Reply

        An affirmative defense relies on proving you are innocent. It’s a complete reversal of the burden of proof requirement that our nation’s justice system has relied on since colonial times.

        An affirmative defense is confessing to a crime and claiming that it was necessary. These include self defense, defense of others. An affirmative defense MUST BE PROVEN IN COURT.

        Given the broad strokes. Anyone having an interaction with a child is guilty. Playing with your infant or toddler will involve picking them up, typically with hands either with hands under the armpits or on the diaper. Both of which will violate the law.

        The ability to tack this on as a threat of prosecution is insane, as you are guilty until proven innocent. It’s use as leverage against anyone and everyone means that prosecutors can use it to force plea bargains, with the option of … taking it to the Supreme Court again? That is literally what they say should be done. Your typical accused doesn’t have the ability, understanding of the law, or the money to do so, and anyone who does would be instantly ostracized and fired from their job due to the fact that they were being prosecuted for sexual abuse of a child.

        • Ernie Menard
          20 September 2016 at 7:41 pm - Reply

          So, what’s your point?

  • Suck it up
    18 September 2016 at 12:01 pm - Reply

    Don’t like it? Get the fuck out of Arizona then. Go to one of the hippy child molesting states then. We don’t want nambla enablers here.

    • Ganthet
      18 September 2016 at 2:43 pm - Reply

      Invariably, there is always some person, who has never been accused of an over-abundance of schooling, who is always arguing that any ridiculously overbroad, solution in search of a problem law or interpretation of a law that makes virtually everyone criminals is good and that anyone who doesn’t think so is a hippy, liberal, or otherwise undesirable and should get out. Oh, and they’re usually the same type of person who craves an authoritarian leader who will tell them what to do and which groups are bad, yet also claim to yearn for limited government.

      Suck it up, aren’t you missing a book burning somewhere? Clearly government has its work cut out for it in protecting everyone from everyone, and especially harmful, “hippy” ideas.

      • phm
        19 September 2016 at 3:09 am - Reply

        Worse, I think this guy misses the point that for all functional purposes Arizona currently has little or no actual protection for children from child molesting, being that the law as it currently written and interpreted far exceeds the state’s constitutional power. It would, however, be nice to see a ruling come from some federal court that said, in essence, that simply relying on prosecutors not to abuse a loophole is not sufficient protection from government malfeasance.

        • Picador
          19 September 2016 at 4:09 pm - Reply

          Guys, I’m about 99% sure you’re being trolled.

    • David Lawrence
      19 September 2016 at 1:26 am - Reply

      “Suck it up”, methinks thou doth protest too much.

  • anna
    18 September 2016 at 9:24 pm - Reply

    How about limiting the contractions a little? Is it really that difficult to spell out two words?

  • Ken S.
    18 September 2016 at 10:05 pm - Reply

    If no better argument against that application of the law was made, the court can’t really invent one for them. I would probably raise a substantive due process argument that criminalizing the care of children (regardless of the availability of a defense) deprives parents and caregivers of essential liberty.

  • One Law To Do It All | Simple Justice
    19 September 2016 at 6:05 am - Reply

    […] Brown exposed the Arizona law criminalizing parents and pediatricians, caregivers and teachers, who will be called upon to go […]

  • Karyl Krug
    19 September 2016 at 10:59 am - Reply

    An innocent school nurse was sent to prison under Arizona law. No Arizona court has agreed to hear the alleged victim, now an adult, testify that this nurse did nothing untoward. And this refusal to hear this newly available evidence goes all the way up to the federal district court level.

    I practiced criminal law for most of my life in Texas, where I knew that, if nothing else, I would most likely get a fair shake in federal district court. After 5 years in Arizona, I now see clearly why the Harvard Ethics Center rated Arizona dead last in governmental ethics. As the report says, the judiciary is also implicated.

    In Phoenix in the 1970s, the same lawless decade in which an investigative reporter was murdered in a car bombing, an Arizona State Bar President was caught on audiotape trying to set up a prostitution ring. He was never prosecuted for even attempted human trafficking, nor was he disciplined by the Arizona State Bar. The evidence was destroyed, but the lawyer admitted to investigative reporters who had heard the tape that he said all those things on the tape, explaining that it was just an incredibly lame attempt to get laid by a prostitute. I’m sure she would have taken cash, and that the elaborate story about setting up a prostitution ring to service traveling businessmen was more than an attempt to avoid paying for a hooker.

    Since then, this lawyer/Arizona Bar President/human trafficker or pimp wannabe has won numerous bar ethics awards and specializes in representing lawyers charged, also without specific notice, with unethical conduct in bar complaints. After testifying against the Arizona State Bar last fall, I myself was served with a bar complaint, the first in my 23 year career, consisting of hundreds of pages filed by a notoriously crazy non-client in a pro bono case. I kept asking for specific notice, but I was told consistently, for months, that the hundreds of pages of crazy rambling was my notice.

    The concepts of specific notice, due process, and fundamental fairness in Arizona are pretty much ignored, as are long standing precedents in death penalty case, the unlawfulness of First Amendment retaliation, lawyers’ rights not to fund Bar political speech under the Keller case, and any other federal constitutional law Arizona feels like blowing off. Lawyers and citizens alike are not safe in Arizona. If somebody in power here decides to violate your constitutional rights, there is almost nobody here who can stop them unless they want to.

    I wish I had understood all that before we moved here 5 years ago. Nothing has really changed here since the Arizona State Bar President tried to set up a prostitution ring 40 years ago. Getting an Arizona bar card is possibly the worst mistake I have ever made.

  • Parents Beware: Arizona Court Says Changing Diapers Equals Sexual Molestation – ePeak.info
    20 September 2016 at 12:10 am - Reply

    […] In a decision that reaffirms a draconian sexual abuse law, the state’s Supreme Court just upheld a statute that defines sexual abuse and molestation of a child “in such a way that intentionally or knowingly touching the genitals or anus of a child or the breast of a female younger than fifteen is a felony,” Matt Brown of Mimesis Law writes. […]

  • In Arizona, Parents Could Go to Jail for Changing Their Kids’ Diapers – Reason (blog) | KiddyGalaxy
    20 September 2016 at 1:27 am - Reply

    […] more, noted Matt Brown in Mimesis Law, quoting the two dissenting […]

  • Peter Gerdes
    20 September 2016 at 1:53 am - Reply

    Suppose one wanted to create a system of judicial review that struck down overbroad statutes (assume you can add constitutional amendments if necessary). Is there a way to do it reasonably? How?

    It might be easy in cases where common sense tells us that some criminalized behavior is a normal everyday occurrence but that doesn’t help at all with laws that criminalize more complex/abstract behavior, e.g., conspiracy, obstruction, CFAA.

  • In Arizona, Parents Could Go to Jail for Changing Their Kids’ Diapers – FREEDOM BUNKER
    20 September 2016 at 4:21 pm - Reply

    […] more, noted Matt Brown in Mimesis Law, quoting the two dissenting […]

  • Jon Saline
    21 September 2016 at 2:10 am - Reply

    In Arizona justification defenses such as self defense or defense of others are explicitly not affirmative defenses, though when used they similarly shift the burden of proof. See A.R.S 13-205 and 13-401 et seq. Saying something is not a crime, through the noted affirmative defense, is not the same as saying it was a crime but was necessary.

    • shg
      21 September 2016 at 6:11 am - Reply

      What does this have to do with anything?

  • In the News (#674) | The Honest Courtesan
    21 September 2016 at 6:02 am - Reply

    […] Now that the precedent’s firmly established, you’re going to see an increasing number of…: […]

  • Russian “Red Alert” Issued After Hillary Clinton Labels All American Parents Sex Criminals | EUTimes.net
    21 September 2016 at 11:09 am - Reply

    […] charge parents for changing their child’s diaper, they could argue that they were exercising “their fundamental, constitutional right to manage and care for their children”—but to which top US legal experts replied would put every Arizona parent on the sex offender […]

  • Attention Parents: Court Says Changing Diapers May Equal Sexual Molestation – The Modern Gnostic
    21 September 2016 at 12:33 pm - Reply

    […] In a decision that reaffirms a draconian sexual abuse law, the state’s Supreme Court just upheld a statute that defines sexual abuse and molestation of a child “in such a way that intentionally or knowingly touching the genitals or anus of a child or the breast of a female younger than fifteen is a felony,” Matt Brown of Mimesis Law writes. […]

  • Q
    23 September 2016 at 11:03 pm - Reply

    Do you even have to go so far as to change a child’s diaper or bathe a child to be in violation of this law? I am under the impression that the law covers any touching with any part of the body. Does the law differentiate between clothed and unclothed touching? I don’t have the impression that it does.

    Imagine the following scenario: I visit my friend who has a five year old girl. The girl hugs me, chest to chest. I have now touched her breast area. Through clothing, true, but I doubt that the law makes allowances for that. Were I to have, in a similar circumstance, deliberately touched her anus or vulva, even through her clothing, that would clearly be inappropriate, so I presume that the law is written to make that, and thus also a clothed hug, inappropriate.

  • Fault Lines Friday Fail
    30 September 2016 at 11:31 am - Reply

    […] Last week’s “winner,” earning the first ever Fault Lines mention at Snopes, was the Arizona Supreme Court opinion making changing a diaper a sex offense. Check out this week’s top 5 fails and pick your […]