Could Changing a Diaper Be a Crime?

In a bizarre ruling by the Arizona Supreme Court on September 13, 2016, any person could be convicted of child molestation merely by touching a child’s genitals. The Court ruled that no sexual intent is required to be found guilty of the state’s child molestation statute. That means that a parent or a caregiver could be convicted for something as simple as changing the baby’s diaper.

The ruling came down in the case of The State of Arizona v. Jerry Charles Holle. The Court ruled that Arizona’s sexual abuse law does not require sexual intent for charges to be filed. The statute forbids any intentionally or knowingly touching any part of the genitals or anus of a minor under the age of 15. Therefore, any touching of the genitals is a crime. How a parent could properly bathe a toddler without violating this Arizona statute is apparently a mystery.

The Arizona Supreme Court reasoned that it would be unlikely for a prosecutor to charge parents or physicians when the evidence demonstrates an affirmative defense. An affirmative defense is a set of facts that justifies or excuses what would otherwise be criminal conduct. Self defense is a common affirmative defense. The defendant doesn’t deny that he shot the guy, he just argues it was necessary to for self protection. If those facts are believed, the law excuses his conduct.

The dissenting judges argued that the law shifts the burden of proof to the accused, thus saying that they are guilty until they can prove themselves innocent. This is complete reversal of the way things have been done in America since our founding. Normally, the prosecutor is required to prove the accused guilty beyond a reasonable doubt. Under this new law, a prosecutor merely has to prove that the person touched the genitals of a minor, forcing that person to then prove justification.

In California, this is not the case. The prosecutor in this state is held to a high burden of proof. California Penal Code Section 288(a) makes it a crime to touch a child’s body. However, the law also requires that the touching be committed “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself.” So in California it is not sufficient for a prosecutor to prove only the touching. Sexual gratification is the other element that must be proven.

If you are being accused of sex offense such as molestation, or rape, you should immediately consult with an attorney who specializes in these types of cases. San Diego criminal attorney Timothy Richardson is an award winning trial attorney who has won many sex offense cases, and he offers a free consultation.


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