Judge lets convicted child molester go free

Says law imposes unconstitutional burdens on defendants

PHOENIX -- Calling the statute a "grievous threat to due process of law,'' a federal judge has released a convicted child molester after ruling the law imposes unconstitutional burdens on defendants to prove their innocence.

In an extensive analysis of the issue, Judge Neil Wake said someone can be convicted of molesting for the "intentional and knowing'' touching of the private parts of a child. But the law says a defendant can seek to escape conviction by proving that touching "was not motivated by a sexual interest.''

But Wake said that turns the law on its head.

He said it is the legal obligation of prosecutors to prove all elements of a crime. And that, said Wake, means it's up to the prosecutor to prove that the person touched the child with a sexual intent, not for the person, already arrested, to prove otherwise.

Wake said the Arizona law instead criminalizes "wide swaths of conduct with no element of the crime to differentiate between culpable, innocent, and constitutionally protected conduct.''

"By prohibiting 'touching, fondling or manipulating' of a child's private areas, Arizona's child molestation law criminalizes sexual fondling of children, sitting a child down in a chair, diapering and bathing an infant, medical treatment, and religious circumcision alike,'' the judge wrote.

The ruling is at odds with what the Arizona Supreme Court decided last year when it rejected a similar challenge to the law. In that case, which the U.S. Supreme Court on Monday refused to review, the Arizona justices said prosecutors are "unlikely to charge parents, physicians, and the like'' when the evidence shows that the touching was not done with a sexual intent.

Wake said that clearly isn't the case, citing other cases, including one from Pima County, where a father was brought up on charges bathing his child, only having to defend himself in court.

"Just trusting the government to do the right thing is poor dressing for constitutional wounds,'' Wake wrote.

The ruling resulted in the immediate release last week of Stephen E. May, convicted in 2007 on five counts of child molesting. He was sentenced to consecutive 15-year terms for each for incidents in Mesa that the attorney general's office, which sought to uphold the convictions, said involved touching two girls and a boy through clothing or bathing suits.

But this may not be the last word. The attorney general's office is asking the 9th U.S. Circuit Court of Appeals to overturn what Wake did and send May back to prison.

The decision also drew an angry reaction from Maricopa County Attorney Bill Montgomery whose agency prosecuted May in the first place. He said Wake's ruling shows an "outright disrespect'' for last year's Arizona Supreme Court ruling, the ruling the U.S. Supreme Court left intact.

Wake, however, said that was "the first time anywhere in the country'' that a court had concluded that people charged with molesting have the burden of proving they had no sexual intent. And he specifically criticized the state's high court for concluding that there's nothing wrong with shifting the burden.

"The state Supreme Court implies that any law may intentionally and expansively sweep innocent conduct within its prohibition by omitting traditional and common sense elements of the offense -- leaving it to the selected defendants to prove their innocence,'' Wake wrote.

"There is a grievous threat to due process of law from making defendants disprove their own state of mind for conduct that is not wrongful in any sensible way without a bad mental state,'' the judge said.

Wake also rebuffed claims by attorneys for the state that lawmakers have complete and unfettered authority to decide both the elements of a crime and what are affirmative defenses that someone charged can raise.

"The state's stance is antithetical to the very requirement of proof beyond a reasonable doubt,'' the judge wrote. "Deference to the legislature's discretion ends when it offends some principle of justice so rooted in the traditions and conscience of our people to be ranked as fundamental.''