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4:18 PM Sat, Nov. 17th

Child molestation ruling worries chief justice

PHOENIX — The chief justice of the Arizona Supreme Court is openly worrying that a new ruling will let police charge parents with child molesting for changing a baby’s diaper.

Scott Bales said the majority in the 3-2 decision puts the burden on someone who is accused of intentionally or knowingly touching the genitals or anus of a child of showing that it was not done with a sexual intent.

This case involves Jerry C. Holle, charged with inappropriately touching his 11-year-old step-granddaughter.

“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,’’ Bales wrote in his dissenting opinion on the case. He said there is “little solace’’ to parents to find out that after they are arrested, indicted and on trial that they finally have the right to escape conviction and prison by proving the touching “was not motivated by a sexual interest.’’

And what’s worse, he said, the burden is on the parents to provide that proof.

But Justice John Pelander, writing the majority opinion, brushed aside the possibility that otherwise innocent parents might end up in court.

Chief Deputy Yavapai County Attorney Dennis McGrane has a similar take on the situation, saying he would have voted along with the majority of the justices.

“In this particular case, you’re talking about an 11-year-old girl,” he said. “Talk of diapers and such, I don’t think, necessarily appealed to the majority” of the justices.

McGrane said that, hypotheticals aside, “We take that into consideration in charging.

“We always have and always will. If somebody accused a doctor of (similar) wrongdoing … we would look to the doctor’s motivation” in making a charging decision.

“If it were a special-needs child and they were wearing a diaper, are we going to charge that? No,” he said.

Pelander said there is no evidence that a parent ever has been charged under this statute and if there were such a case, a court likely would rule the law could not be applied because it would interfere with parents’ “fundamental, constitutional right to manage and care for their children.’’

Anyway, Pelander said, the defendant in this case made no such claim. And he noted that even Bales and Justice Robert Brutinel, who joined in the dissent, acknowledged that, even with the alleged flaws in the law, this conviction should still stand.

But David Euchner of the Pima County public defender’s office said there is, in fact, at least one such case where a foster parent was indicted and had to stand trial for following a doctor’s orders and checking to see if his foster children were soiling themselves. That man was eventually acquitted after a trial.

“But his life got ruined,’’ Eucher said. “It happened before, it can happen again.’’

Euchner said he intends to provide that information to the Supreme Court in hopes the justices will reconsider their ruling.

The crimes of child molestation and sexual abuse require only that the touching be knowing or intentional. But the law also says it is a defense to both crimes that the act was “not motivated by a sexual interest.’’

Based on that, Holle’s lawyer argued that jurors should be told that the burden is on prosecutors to prove that any touching was sexually motivated. He also argued the allegations were “blown out of proportion’’ and presented testimony from others, including from his own daughters, that he never sexually assaulted them or any other children.

The jurors found Holle guilty and the judge sentenced him to a 10-year prison term for molestation, followed by five years of probation for sexual abuse.

Pelander said the statutes are clear: Someone can be convicted simply with evidence of knowing or intentional touching, with no mention of prosecutors having to prove the reason why.

“States have broad authority to define the elements of a crime,’’ Pelander wrote. He said as long as jurors are told they can convict only if prosecutors prove each element of the crime beyond reasonable doubt, “it does not offend due process’’ to require the defendant to prove that he is blameless because of some other circumstance -- in this case, the defense of lack of sexual motivation.

Pelander also called arguments that parents -- and even doctors -- could be charged with a crime for examining a child’s private parts “unpersuasive.’’

Still, he conceded that perhaps the law is not a model of clarity.

“Criminal code should clearly differentiate between unlawful conduct and innocent, acceptable behavior without unnecessarily sweeping the latter into the former,’’ Pelander wrote. But he said that wasn’t up to him to decide.

“Subject to constitutional constraints ... proscribing certain conduct and defining what constitutes a crime and any defense thereto are solely within the purview of the political branches of government, not the courts,’’ Pelander said.

Bales, for his part, did not see it that way.

“No one thinks that the legislature really intended to criminalize every knowing or intentional act of touching a child in the prohibited areas,’’ he wrote. And Bales said reading the law the way the majority suggests means not only that people won’t know what conduct will land them in handcuffs but also fail to “constrain prosecutorial discretion.’’

Nor was he comforted by Pelander’s assertion that the constitutional rights of parents to care for their children will ensure they are immunized from prosecution. He said that fails to consider situations like caregivers who may intentionally touch a child’s private parts “for reasons as benign as changing a diaper.’’