A contentious Arizona child molestation law has been ruled as unconstitutional by a federal judge on the grounds that it violates the 14th Amendment’s due process clause. The law, upheld last autumn by the Arizona Supreme Court, criminalized any contact with a child’s genital area by an adult, including diaper changes and other hygienic care.
United States District Court Judge Neil Wake said that parents have a constitutional right to take proper care of their children, which includes changing diapers and bathing with genital contact. He added the state has no right to interfere with that care.
The law, which the Arizona court had upheld in a 3-2 vote, lumped together molestation with the innocent activities of basic child care. Under the law, the accused person would have had to prove there was no sexual intent in their actions. If convicted, a parent or other caregiver would have become a sex offender and faced up to five years in prison.
The main flaw of the statute was the phrase “intentional or knowing touching of the anus, female breast or genitals of a child under 15 years of age” that did not specifically require the contact to be sexual. This placed parents and caregivers in a bad legal position by making the genital contact of routine care a criminal offense.
Although the Arizona court vehemently defended its decision, Judge Wake said placing the burden of proof on the defendant rather than the state was a violation of due process, and the state was not allowed to criminalize ordinary, everyday activities between parents and children.
Judge Wake’s decision has freed Stephen Edward May, who was convicted of inappropriately touching four children and given a sentence of 75 years. May’s conviction did not include proof of sexual contact because it was not required by law. There are parents who also may have been wrongly convicted and will likely request that their sentences be overturned.
Wake is known for his cool and calm demeanor but did display annoyance and frustration in his dealings with the Arizona state government. In his opinion, the state dropped the requirement for sexual intent because it wanted more convictions. The change was approved by the governor despite assurances to the public that it would not happen. The Arizona Supreme Court had to either add implied intent to the law or simply drop it altogether. It did not do either one, leaving the problem to the federal courts.
Arizona parents are now relieved that they are no longer in danger of going to prison for simply taking care of their children.