Legal language can be confusing, but it would behoove lawmakers to be extremely clear about what exactly is happening at all times, otherwise you wind up with situations like the one out of Arizona this week, which has people nervous that parents and caretakers could be threatened with charges of sexual abuse for changing a baby’s diapers.
Obviously not changing a baby’s diapers is significantly more abusive than changing a baby’s diapers, but the issue at play here is that Arizona’s sexual abuse laws do not require “sexual intent” in order for touching to count as molestation.
According to Snopes, the law prohibits “sexual contact,” which is specified as “any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact.” According to Slate, the Arizona law does not specify that the touching must be sexual in nature or involve “sexual intent,” so when read literally it means that technically changing diapers or giving baths could count.
This came into play recently when a Arizona man appealed his conviction for sexually molesting his step-daughter. His lawyers argued that prosecutors had to prove that there was “sexual intent” in his actions, rather than requiring him to prove that there had been no sexual motivation involved. Part of his argument was that if it were not up to prosecutors to prove sexual intent, then parents and doctors could be charged with sexual molestation just for changing diapers and giving baths.
The Arizona Supreme Court disagreed, and upheld the man’s conviction. But the case put a spotlight on the wording of Arizona’s child molestation laws.
According to Fox 10 Arizona, the majority ruling on the case defended the wording of the law, writing: “Prosecutors are unlikely to charge parents, physicians and the like when the evidence demonstrates the presence of an affirmative defense.”
The dissenting judges, however, wrote that: “Parents and other caregivers who have changed an infant’s soiled diaper or bathe a toddler will be surprised to learn that they have committed a Class 2 or 3 felony.”
”No one thinks that the legislature really intended to criminalize every knowing or intentional act of touching a child in the prohibited areas,” the dissent reads. ”Reading the statutes as doing so creates a constitutional vagueness problem, as it would mean both that people do not have fair notice of what is actually prohibited and that the laws do not adequately constrain prosecutorial discretion”
Now when considered logically, there’s no sane situation in which this could be used to prosecute parents for bathing their children. But the fact that it technically could be is currently raising some eyebrows, especially since Arizona is reportedly the only state whose child molestation law reads this way. The reading of this law depends largely on how much the reader trusts prosecutors to behave in a reasonable manner, too.
Slate’s Mark Joseph Stern, seems to have very little faith in that, writing: “Arizona prosecutors can now dangle the threat of a probable child molestation conviction to coerce any parent of a young child into taking a plea deal on unrelated charges. With the state Supreme Court’s help, Arizona’s child molestation laws have been weaponized into a tool for prosecutorial harassment …”
Even if that never actually happens, though, the fact that it could is enough to make people nervous. The court pointed out that changing the wording of the law is not up to the judges, it’s up to the legislature. They might want to get on that, soon.