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Old 16 September 2016, 04:22 PM
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Default Arizona legal definition of child molestation could apply to diaper changes, baths

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.” 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.
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Old 16 September 2016, 05:45 PM
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That's not "could apply," it's does apply... The opinion expressed seems to be saying "... but don't worry, of course nobody would ever be prosecuted for that," not "Don't be silly, it doesn't apply to that"...

It also clearly outlaws pediatrics, unless there's an exemption in there.
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Old 17 September 2016, 05:13 PM
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I have family in rural-ish Arizona. Their insane government really is a reflection of the population. #NotallArizonans, but...
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Old 17 September 2016, 07:57 PM
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Some parents probably need to challenge it in federal court.
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Old 17 September 2016, 08:24 PM
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Can it be challenged without first having standing, like through being arrested or losing custody of a child because of the law? If so, fear this won't make it to the SCOTUS until an actual child molester challenges their conviction. This Holle character, for instance.

Last edited by ASL; 17 September 2016 at 08:31 PM.
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Old 17 September 2016, 11:31 PM
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We aren't given the details alleged/proven in the Holle case, so it is hard to say if s/he has a good test case. Arguably any defendant against whom no proof of motive was given could argue that a critical element of the case was not proven, and that due process does not allow a redefinition excluding the motive. This has been held in other occasions of attempts to avoid the motive requirement. The better test case would be if the motivation is either clearly or arguably lacking. Of course, it really is unlikely that the baby-bath or diaper-change circumstance will arise, unless it is by some sort of relative stranger, like a guy at a daycare or school (almost certainly a woman would not be charged unless there is otherwise unexplainable injury), or an uncle/other relative who seems to take too much time cleaning the child. I have trouble imagining other circumstances where a person would have genital/anal contact with a child where the motive could not be adequately inferred from the conduct - and the problem with those cases as test cases is that courts try to avoid invalidating statutes, and can easily say that the defendant's rights were not violated as the evidence of the conduct adequately proved the motive. For instance, if a person was penetrating a child's vagina or anus, particularly with his penis, no further proof of the motive would generally be needed, even under more tightly defined law; such a defendant could not rightly be said to have had his rights deprived by a lack of a need to prove motive.
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Old 18 September 2016, 12:08 AM
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The Holle case may be the one via the US Supreme Court. That would be a challenge more directed at the due process issue of making otherwise "innocent" conduct into a crime and then requiring a defendant to prove that it was not done with a criminal motive. It's possible that they would take it, but there could be a line drawing issue there. Normally, in our system, we kind of count on legislatures not to make laws like this. Generally speaking, legislatures get to decide what is or isn't innocent conduct, by definition.

I was thinking that the more effective challenge might be for parents to try taking it on as overbroad, and infringing on parental rights. It literally prohibits properly caring for one's child. (As explained in the article, an affirmative defense means you can be arrested and go to trial, and only then have the chance to prove the defense.)
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