Free-Range Kids

In Arizona, Parents Could Go to Jail for Changing Their Kids' Diapers

Defendants have to prove the contact was non-sexual


Marcin Okupniak / Dreamstime

What's the difference between a parent changing his baby's diaper and a child molester fondling a 12-year-old's breasts?

In Arizona, that's a trick question—because, legally, there is no difference. In a state Supreme Court ruling that came out last week, the justices determined that intentionally or knowingly touch the private parts of a child under age 15 is automatically a felony.

Okay, but what if there was no sexual intent? What if, say, dad was giving the baby a bath, or the babysitter was taking the kid's clothes off to get him ready for bed?

Well, according to the decision in State v. Holle, if defendants can prove that they were "not motivated by sexual interest," then they can avoid being deemed sex offenders. But this places the burden of proof on the accused to prove their innocence, not the state to prove their guilt. The state no longer has to demonstrate that the contact was non-sexual—the accused party has to prove that.

What's more, noted Matt Brown in Mimesis Law, quoting the two dissenting justices:

Such a defense…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.

Criminal conduct? The conduct of helping a kid into her bathing suit?

The Arizona law that triggered this decision deliberately keeps the tripwires vague. And the state Supreme Court had no problem with that, relying on what it believes will be the impeccable restraint of all prosecutors throughout the state:

We cannot and will not assume that the state will improperly prosecute persons who, though perhaps technically violating the terms of broad statutes [], clearly engaged in reasonable, acceptable, and commonly permitted activities involving children.

And yet, notes Brown, since 90 percent of all cases never go to trial and are determined by plea bargain, this gives prosecutors a giant scythe to dangle over any citizen: Are you going to go to court to prove you're not a sex offender? Or are you going to take a plea?

It's a scythe that can be used as a new threat to defendants facing other, unrelated charges, too. Are you now or have you ever changed a diaper? Then we've got you.

These fears may seem paranoid, says Fordham Law Professor John Pfaff, and "obviously, if hundreds of these cases came down the line, the legislature would have to change the law. But," he points out, "we'll never see those cases. Because even if you can prove yourself innocent, by the time you're charged with child molesting it's going to ruin your life. So prosecutors [can] use these tools in ways that are very hard to see."

Yes they can. And that stinks more than a day-old Pampers.