The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Arizona criminalizes "molestation of a child," which it defines as "intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age." "Sexual contact" is defined 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."
The prohibition does not require that the "sexual contact" have any "sexual intent"; any "direct or indirect touching" is expressly prohibited. Thus, much clearly innocent behavior—diapering or bathing an infant, for instance, or performing a circumcision or a routine gynecological or urological exam—would appear to constitute criminal "molestation."
To ameliorate that rather substantial ambiguity, the statute does allow the defendant to raise the "affirmative defense" that he or she "was not motivated by a sexual interest." The burden of proof, however, is on the defendant; that is, to avoid criminal liability, he or she must disprove, by a preponderance of the evidence, that he or she had a sexual intent.
Although the Arizona Supreme Court last year upheld this statute against constitutional attack, the Arizona federal district court has now held that this scheme deprives people charged with molestation of their constitutional right to due process by denying them the "presumption of innocence" and by eliminating the constitutional requirement that the state bears the burden of proving guilt—and of proving it "beyond a reasonable doubt"—in criminal proceedings.
The law is clear that a state may not shift the burden of proof to a defendant regarding any of the elements of a crime
The Fourteenth Amendment to the United States Constitution provides that a state shall not "deprive any person of life, liberty, or property, without due process of law." In criminal proceedings, this requires the state to "pro[ve] beyond a reasonable doubt … every fact necessary to constitute the crime with which [the defendant] is charged." In re Winship, 397 U.S. 358, 364 (1970).
The state tried to get around this constitutional command by arguing that "sexual intent" was not an element of this crime and that the burden-shifting onto the defendant was therefore not constitutionally prohibited. While the Arizona Supreme Court—inexplicably, in my view—bought the argument, the federal court properly saw through it.
The State deprived May of his constitutional right to due process of law and proof of guilt beyond a reasonable doubt. By crafting its child molestation law as it did, Arizona spared itself from proving sexual intent and instead burdened May with disproving it. Absent sexual intent, however, all the conduct within the sweep of the statute is benign, and much of it is constitutionally protected. Nothing in the [express] elements of the crime distinguishes wrongful from benign or constitutionally protected conduct. One must look to the defendant's burden of proof to see what this statute is really about, which is the same thing it has always been about: the defendant's sexual intent. …
This shifting to the accused of the burden of disproving everything wrongful (here the only thing wrongful) about the prohibited conduct cannot stand unless there are no constitutional boundaries on a state's ability to define elements, [to] transubstantiate denials into affirmative defenses, and to be master of all burdens of proof. The State argues precisely that in defense of May's conviction. … But there are boundaries, some well-settled boundaries, and this statute crosses them at a brisk sprint. …
[S]ection 13-1410 criminalizes diapering and bathing infants and much other innocent conduct. More than just innocent, some such conduct is constitutionally protected. See Troxel v. Granville, 530 U.S. 57, 66 (2000). … The language of the elements describes benign and constitutionally protected behavior that could only become wrongful with sexual intent – the very fact the Arizona law forces the defendant to disprove. This is convicting people without proof of wrongdoing because they have not disproved the only thing that could color their conduct as culpable.
Measured against the Supreme Court's standards and criteria, the burden-shifting scheme in Arizona's child molestation law violates due process plain and simple. The defendant bears the burden of disproving the very thing that makes child molestation child molestation. There are "obviously constitutional limits beyond which the States may not go" in redefining offenses, and this is obviously one of the limits.
(The scope of the constitutional protection for the "presumption of innocence" is the subject of a pending Supreme Court case, Nelson v. Colorado, on which I worked and about which I blogged several months ago.)
[h/t to Bill Dobbs of the Dobbs Wire for the pointer]