Prosecutors in Arizona promise they won’t charge parents with molestation for diapering or bathing their babies and children. The crazy part is that they have to make this promise at all.
Some background: Current Arizona law defines “sexual contact” 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.” It’s a standard that does not require the state to prove sexual intent.
When such charges are brought, the defendant can claim he or she “was not motivated by a sexual interest.” The law effectively defines changing your child’s diaper as sexual contact, and unconscionably puts the burden on you to prove that it wasn’t.
Last month, the Arizona Supreme Court ruled 3-2 to uphold the law.
Chief Justice Scott Bales, who dissented in the case, raised the real possibility that, as written, Mom, Dad or Grandma could be charged with molestation just because they’d touched their kids’ privates in the normal course of caring for their offspring. “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.”
Worse still would be the necessity to defend the charges by proving there was no “sexual” intention to the physical contact. “Such a defense,” the judge wrote, “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.”
And such absurd notions of presumed guilt aren’t all that rare. Indeed, when it comes to the child-welfare system, parents are held to the same unfair standard.
“The apparent suggestion that parents can rely on the discretion of police, child protection authorities and prosecutors not to file charges regarding sexual abuse related to ordinary parenting activity is belied by the overreaching that regularly occurs when broad discretion to decide what constitutes abuse or neglect is given to authorities involved in child protection investigations,” explained Family Defense Center founder Diane Redleaf.
While prosecutors insist that parents shouldn’t fear overly broad interpretations of the law or overzealous prosecutions, many of the incentives for prosecutors gravitate the other way. No prosecutor wants to be seen as “soft on child-sex crime.”
Plus, “mandatory minimums” and the government’s immense reliance on plea bargaining have created a legal regime in which prosecutors have the power to threaten extremely harsh punishments if defendants insist on going to trial. By making “sexual intent” an affirmative defense, which can only be raised at trial, Arizona lawmakers are forcing defendant parents to take a huge risk just to defend themselves.
Even if there’s little risk of prosecutorial misconduct, there’s simply no reason to make basic parenting criminal on its face. Anyway, it’s not just the prosecutor who has the potential to misuse this law.
Redleaf is especially worried about the Arizona situation because she’s seen so many cases of moms and dads accused of child abuse, and especially sexual molestation, when there’s already a conflict between the two adults.
“Unfortunately,” she argues, “the parents who will be most vulnerable to these charges will be the ones who are already least able to respond effectively to criminal charges. Sexual-abuse charges are notoriously difficult to refute, even when the alleged perpetrator is innocent of wrongdoing.”
And there are already too many examples of adults using children and accusations of abuse and molestation as their weapon of choice against each other. The most recent example was the notorious celebrity decoupling of Brad Pitt and Angelina Jolie, who accused her husband of child abuse as the first salvo of their divorce proceedings.
Legislators and prosecutors are within their rights to be tough as nails on child-sex abuse, but in their zeal to protect kids, keeping innocent parents out of the fray doesn’t seem like too much to ask.
Abby W. Schachter is the author of No Child Left Alone: Getting the government out of parenting. Adam Bates is a policy analyst at the Cato Institute’s Project on Criminal Justice.