Every Arizona parent who has changed a baby's diaper or given their toddler a bath could be charged with a felony, according to a legal interpretation of the state's child-molestation laws.
State law defines child molestation as intentionally or knowingly engaging in sexual contact with a child under age 15. The statute defines sexual contact as "any direct or indirect touching, fondling or manipulating" of a child's genitals or private parts. But there is no additional clause, as is found in other states' statutes, requiring that the touching coincide with an intent to harm, violate or arouse.
The Arizona Supreme Court in a 3-2 split decision last week said the state Legislature intentionally did not include intent in its definition of molestation, said the state is not required to prove intent in such cases, and agreed that a parent touching a child's genitals as part of a normal diaper change or a physician conducting an examination of a child is molestation under their interpretation of the law.
Criminal defense attorney Russ Richelsoph said Arizonans should be very concerned about what he said was the court's new interpretation of the law.
"When you have a statute that criminalizes such a broad set of behaviors that everybody's a criminal, everybody who has changed a diaper, every physician or nurse who has examined the genitals of a child, that's a huge problem," Richelsoph said. "I'm not comfortable with that, and that's not something that Arizona citizens should be comfortable with."
But Maricopa County Attorney Bill Montgomery said the law has been interpreted consistently for more than 30 years, and to his knowledge no parent has been prosecuted for properly changing a diaper.
"I'm a parent. I have prosecutors who are parents," he said. "We know the difference between diapering and molesting a child."
Trust the prosecutors?
The justices in their opinion said prosecutors would be "unlikely to charge parents, physicians, and the like" of such a crime and that the fear of such "absurd prosecutions" does not warrant the court ignoring the language the Legislature put into law.
Basically, the justices wrote, their hands are tied.
"We agree that the criminal code should clearly differentiate between unlawful conduct and innocent, acceptable behavior without unnecessarily broadly sweeping the latter into the former," the prevailing court opinion states. "... Defining what constitutes a crime and any defense thereto are solely within the purview of the political branches of government, not the courts."
Richelsoph said the government should not have such broad authority.
"The court says, 'Well, but we can trust prosecutors to use common sense,' " Richelsoph said. "But that's not the spirit of our Constitution. The spirit of our Constitution is to limit the power of the government."
Montgomery said prosecutors always take into account sexual motivation when determining whether to prosecute a case.
"I understand this statute is on the books not to prohibit any kind of contact between an adult and a child, but to prevent the preying of an adult on a child for a sexually motivated purpose," he said. "If someone intentionally touched a small child's body but it was in the course of something legitimate like diapering, like bathing, you're not going to be subject to a charge."
Montgomery said there are safeguards to ensure a prosecutor in Arizona couldn't use the statute maliciously or to get a tougher plea deal, from the grand jury and the criminal defense attorney to the judge, jury and public.
"There are more checks on a prosecutor's use of a statute than most people generally think," he said.
But Richelsoph said such a broad law can still do damage.
"Physicians get accused of molesting children. Parents, especially in divorce situations, get accused of molesting children," he said. "And then you have someone spending a lot of money on a private defense attorney or having to get a public defender. It's an expensive, stressful process."
If an innocent parent were to be charged with such a crime, the justices wrote in the prevailing opinion, the parents could argue that the application of the law violates their constitutional right to care for their children.
But Richelsoph said it would be disastrous to drag a parent to that point.
"Sex crimes against children are so loaded. If you are charged, I don't care if you are innocent or not, the bell has been rung. Your reputation is destroyed. The public assumes if somebody's charged with a crime, they did it."
How we got here
The case that ignited the debate involved a man who admitted to touching and kissing an 11-year-old girl's breasts and thrusting himself against her exposed buttocks, but argued the actions were not sexually motivated. He was convicted of sexual abuse and molestation.
In his appeals, he argued the state should have to prove sexual motivation instead of him bearing the burden to disprove it.
The dissenting justices agreed the state, not the defendant, should have to prove motivation. But they acknowledged that in this particular case, that would not have overturned the man's conviction. The case has now become about the law itself, and not the man's conviction.
"They didn't need to throw out the conviction in order to come to the right results in this case," Richelsoph said.
In its court brief, the state Attorney General's Office defended the logic and constitutionality of the law. Generally, most crimes do not require a prosecutor to prove a suspect's motivation in order to convict. The brief did not address the broader impact on parents and others who may violate the law while caring for children.
A rock and a hard place
The two justices writing the dissenting opinion state that Arizona is alone in the nation in making its molestation laws so broad. The statute is likely unconstitutional in its current version, they wrote.
"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 wrote in their dissent. "No one thinks that the Legislature really intended to criminalize every knowing or intentional act of touching a child in the prohibited areas."
Montgomery said he took offense at the dissenting opinion.
"It was extremely disappointing to see the dissent latch on to such inflammatory language and mislead the public in how the statute is utilized," he said. "It was gratuitous and unnecessary."
Richelsoph said the attorneys could appeal the ruling to the U.S. Supreme Court, challenging the constitutionality of the law. And, he said, they may have a good chance of winning, in which the high court would essentially overturn the entire law and leave Arizona with no child-molestation crime on its books.
The Legislature could also choose to change the law, introducing a bill with a new molestation definition when the session begins in January.
"It's not hard to prove sexual motivation," Richelsoph said. "When somebody is molested, it's usually a very clear-cut situation. People should demand the Legislature require prosecutors to do their job."
But Montgomery said the law needs to remain as it is. He said Arizona's law doesn't need to look like the law in every other state, and he doesn't believe there's anything constitutionally wrong with the way Arizona's law is written.
"You write into the law that we have to prove sexual motivation and now you have created a burden that currently does not exist in Arizona law," he said. "You will do it to the detriment of young children. It will make it more difficult to hold those offenders accountable."