Originally Published: April 4, 2017 6 a.m.
PHOENIX — The nation’s high court has upheld a criminal conviction that the chief justice of the Arizona Supreme Court openly feared could lead to child molesting charges against parents for routine actions.
Without comment the U.S. Supreme Court on Monday refused to review the conviction of Jerry C. Holle on charges he inappropriately touched his 11-year-old step-granddaughter. The move means the Pima County resident will not escape the 10-year prison term on charges of molestation, followed by five years of probation for sexual abuse.
What makes the case noteworthy are comments last year by Scott Bales, who said the precedent set by his court — a precedent the U.S. Supreme Court left intact — poses a danger for parents for something as simple as changing a baby’s diaper.
The issue goes to the fact that under Arizona law someone can be convicted of child molestation and sexual abuse if a jury believes the touching was knowing or intentional.
But that same law also says it is a defense to both crimes that the act was “not motivated by a sexual interest.” Holle’s lawyer said that was never proven by prosecutors.
In a ruling last year, the Arizona Supreme Court said nothing in the law puts that burden on prosecutors. Justice John Pelander, writing for the court, pointed out that Holle never made such a claim.
Bales agreed with the majority that, at least in this case, the conviction should stand. But he warned that the wording of the law — making it a crime to knowingly touch the genitals or anus of a child — without showing some sexual interest leaves too much to chance and too much risk that an overzealous prosecutor could put a parent behind bars.
“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 a dissenting opinion on the case. Nor was he swayed by the fact that a parent, once arrested, might be able to escape conviction by providing proof the touching was not motivated by a sexual interest.
Pelander, however, said he finds nothing legally wrong with the statute.
“States have broad authority to define the elements of a crime,” Pelander wrote in last year’s ruling. 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.
And he called it “unpersuasive” that parents and even doctors could be charged with a crime for examining a child’s parts.
But Pelander conceded that perhaps the statute 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.
“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.”
In comments last year, David Euchner of the Pima County public defender’s office said he knows of at least one 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,” Euchner said at the time. “It happened before, it can happen again.”