September 21, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
The case of State of Arizona v. Holle has gotten many people into quite a snit and justifiably so. Here’s one example (Slate, 9/16/16), and here’s another (Independent Journal Review, 9/17/16). To be brief, it is now a felony (and punishable by lengthy prison terms) to bathe your child, diaper your child, clean your child and in some cases medicate your child. And it’s not just parents who are in the crosshairs of the state’s criminal law enforcement apparatus; doctors and nurses are too.
Why? Because the state Supreme Court has ruled that any touching of the genitalia of a person under the age of 15 (by presumably anyone other than themselves) is a crime. Most states have similar laws, but they invariably require prosecutors to prove that the touching involved some sort of sexual intent. That is, the purpose of the touching was sexual and not for the normal reasons parents, caregivers, healthcare providers, etc. might have cause to touch a child’s genitals.
So when the State of Arizona charged Jerry Charles Holle under the law, that’s exactly what he claimed – that the law requires the state to prove that, when he touched his daughter, his intent was sexual and not for some legitimate reason. (Apparently the evidence at trial amply demonstrated that Holle’s intention was sexual.) The court of appeals agreed, sensibly concluding that, when the statute refers to “sexual contact” with the genitals of a person under the age of 15, it means sexual touching and not normal parental/medical behavior.
Not so said the Supreme Court. According to it, the state need not prove a sexual intention on the part of the accused. Proving no sexual intention is now the obligation of the person charged. Accordingly, in Arizona, it is now possible for a district attorney’s office to charge any parent of a young child, many daycare operators, pediatricians, nurses, baby sitters, etc. with felony sexual abuse of a child for the commonest, least offensive, least controversial and entirely necessary actions of childcare.
Now, many will argue that those people and their behavior will be protected by prosecutorial discretion. After all, what ADA will want to take to court a mother who changed her baby’s diaper, or a father who applied cream for diaper rash or a nanny who bathed a toddler? It’s a fair point, but in no way sufficient to rebut criticisms of the Court’s decision.
First, perhaps the most important reason for due process of law is that we rightly don’t rely on the discretion of state agents to protect individual rights. Indeed, the entire concept behind our Constitution and various amendments thereto is that government power must be limited by individual rights. The Founding Fathers and many since have well understood that, when the state is given power, abuse of the individual follows as night follows day. Jerry Charles Holle is apparently a child molester and deserves no sympathy from anyone. But that is no reason to deny basic due process rights (in this case the requirement to place the burden of proof on the state where it belongs) to other future defendants. And that is precisely what this decision does.
Second, it’s common knowledge that the police power of the state is as awesome as a threat as it is when it’s used. So we can easily imagine a prosecutor threatening to add sexual abuse of a child to other potential charges in order to force a plea bargain on an otherwise unwilling defendant. After all, does the accused really want to trust a jury, when confronted by such a charge, to pay attention to the niceties of criminal intent?
And of course the onus of the Court’s decision will fall most heavily on those least able to defend themselves, i.e. the poor and the uneducated.
Put simply, we must forever guard ourselves against the encroachment of state power into our private lives which is what this decision allows.
As a constitutional matter, the majority’s opinion is at best suspect. As I’ve stated elsewhere, the Court’s interpretation of the statute is unconstitutionally vague and overbroad because it criminalizes behavior that is protected by U.S. constitutional precedent and natural law. As numerous U.S. Supreme Court decisions have made clear, parents have certain rights to the care and protection of their children. It seems likely that those rights extend to the normal activities of caring for and raising those children. It’s a point the dissent in the Holle case recognizes.
The majority’s interpretation, I believe, renders the statutes unconstitutional. No one thinks that the legislature really intended to criminalize every knowing or intentional act of touching a child in the prohibited areas. 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.
Accordingly, this case may end up before the U.S. Supreme Court.
Meanwhile the dissent, unlike the majority, makes simple good sense.
Arizona, apparently alone among jurisdictions, has enacted criminal laws broadly stating that a person commits a felony merely by “intentionally or knowingly” touching the genitals or anus of a child or the breast of a female younger than fifteen…
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.” A.R.S. § 13-1407(E). 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.
Apart from its constitutional defects, the majority opinion must be viewed for what it is – overreaching by the state into areas of life in which it has no business interfering with adults’ conduct. Where that overreaching occurs is the family and parental decision-making about children. Viewed properly, Arizona v. Holle is just another chapter in an already-too-long book. That ponderous tome is the history of governmental power exercised over children at the expense of their parents and, often as not, their well-being. We see it every day in the actions of child protective officials, family courts, child support enforcement authorities, domestic violence courts and the like. There as here, the excuse is invariably the protection of children, but the state doesn’t take better care of children than do parents. Quite the contrary. But at every opportunity, governments tell us that it, not parents, acts in “the best interests of children.”
The Holle decision turns on the Court’s clear misinterpretation of a statute passed by the Arizona Legislature. As such, that same Legislature can correct the Court’s mistake in its next session. It should do so on day one. Arizona is a predominantly Republican state with a predominantly Republican legislature. Republicans stand ever ready to tell us how opposed they are to “big government.” Now would be a good time to prove it.
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