Can Diapering a Baby Be Charged as a Crime?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Mother and babyOne of the most important principles of the American system of criminal justice is that every fact required for conviction of a crime must be proved beyond a reasonable doubt. When a state enacts a statute that relieves prosecutors of that burden, the statute is ordinarily struck down as violating a defendant’s right to due process of law.

The Arizona Supreme Court is being justly criticized for jettisoning that principle in favor of making guilty verdicts in child abuse cases easier for prosecutors to achieve. While assuring that the guilty are convicted is a laudable goal, doing so by requiring defendants to prove their innocence is inconsistent with fundamental American values.

The Arizona Statute

Arizona’s child molestation statute states: “A person commits molestation of a child by intentionally or knowingly engaging in … sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age.” Another statute defines the crime of sexual abuse of a child as “intentionally or knowingly engaging in sexual contact … with any person who is under fifteen years of age if the sexual contact involves only the female breast.”

Both laws define “sexual contact” as direct or indirect touching of the genitals, anus, or female breast. “Knowingly” means to be aware that the conduct is occurring.

The child molestation and abuse statutes thus make it a crime for a mother to touch her child’s genitals while applying baby powder or to dry a baby’s chest with a towel. Both acts involve direct or indirect touching, and “knowing” (rather than accidental) touching is all the prosecutor needs to prove to obtain a criminal conviction.

Arizona does provide parents with a defense. If the parent can prove that “the touching was not motivated by a sexual interest,” the parent can avoid a conviction. But that turns the burden of proof on its head. If being motivated by a sexual interest is necessary to a conviction, prosecutors should be required to prove that motivation beyond a reasonable doubt. The burden should be on the state to prove guilt, but Arizona has placed the burden on the defendant to prove innocence.

Why the Burden of Proof Matters

In most cases, touching a child in innocent ways won’t be charged as a crime because no accusation of criminal touching will be reported to the authorities. In some cases, however, innocent people will be charged. In those cases, shifting the burden of proof from the prosecution to the defense makes it more likely that innocent people will be convicted.

For example, assume that a mother who is planning to divorce her husband wants to obtain custody of her children. She reports to the police that when her husband was diapering their baby, he was touching her in a sexual way. The husband responds “I was just cleaning her genitals and diapering her.” The prosecutor charges the husband with child molestation and both parents testify.

Assume that the jury hears the testimony of both parents and doesn’t know which parent to believe. If the burden of proof is on the prosecution to show that the husband was motivated by a sexual interest, the jury will find the husband “not guilty” because the wife’s testimony was no more believable than the husband’s and guilt was therefore not proved beyond a reasonable doubt. If the burden of proof is on the husband, however, the jury will find the husband guilty because his testimony was no more believable than the wife’s and he therefore failed to establish his innocence.

The Court’s Decision

A 3-2 majority of the Arizona Supreme Court held that the statutes make the absence of sexual motivation an “affirmative defense.” In general terms, an affirmative defense is something that a defendant can rely on to avoid responsibility for a crime even if all the elements of the crime are proved beyond a reasonable doubt. Entrapment and insanity are traditional examples of affirmative defenses.

Prior versions of the Arizona statute provided that someone molests a child by touching the child in intimate places. Arizona courts interpreted the word “molests” to mean “touching that is motivated by a sexual interest.” The court concluded that the legislature was entitled to change the meaning of the term “molestation” in the new law by defining it without regard to the defendant’s purpose and by making the absence of a sexual motivation an affirmative defense.

That interpretation of the law means that thousands of Arizona parents molest their children every day because they touch their children’s genitalia or bottom while bathing or diapering them. Since those parents are not touching their children to achieve sexual gratification, they are entitled to raise an affirmative defense to negate responsibility for the crime, but they are still guilty of an offense unless they are able to prove their innocence.

The majority rejected a constitutional challenge to its interpretation of the statute. The court ruled that the legislature has wide discretion to define crimes and prosecutors have wide discretion to charge defendants. The majority essentially concluded that the public should trust prosecutors to use their discretion wisely. Yet it is a distrust of the government’s wisdom, including that of police and prosecutors, that motivated the Framers of the Constitution to demand that criminal defendants receive due process of law. Requiring innocent people to prove their innocence offends that value.

The Dissenting Opinion

The dissenting judges well understood the problem that the majority opinion creates. They wrote: “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.” The dissenters observed that parents will find “little solace” in the knowledge that although they have committed a crime, they can avoid culpability for that crime by proving that they were not motivated by a sexual interest.

The dissenting judges were almost correct when they wrote: “No one thinks that the legislature really intended to criminalize every knowing or intentional act of touching a child in the prohibited areas.” That is exactly what the majority of the court thought if the judges meant what they said. The majority concluded that all such acts are crimes, although those crimes are excused if they were not motivated by a sexual interest.

The dissenters identified a “fundamental question,” the answer to which should be self-evident: “may the state, consistent with due process, sweepingly criminalize a broad range of conduct embracing both innocent and culpable behavior and assign to defendants the burden of proving their innocence?” Sadly for Arizona parents, the court’s majority arrived at the wrong answer to that question.

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