Arizona's laws on child molestation are so broad that a parent changing a diaper could be prosecuted for criminal activity.
That is the opinion of defense attorney Russ Richelsoph and a minority of judges on the Arizona Supreme Court, according to The Arizona Republic.
Child molestation in Arizona is defined as intentionally or knowingly engaging in sexual contact with a child under the age of 15. Sexual contact is interpreted as “direct or indirect touching, fondling or manipulating” of a child’s genitals or private parts.
Unlike other states, the Arizona law does not require there to be an intent to harm, violate or arouse by the alleged perpetrator.
In a recent ruling, the Arizona Supreme court confirmed that proving intent was not necessary. As a result, it ruled that a parent changing a diaper or a physician conducting an examination could be charged with molestation under the current interpretation of the law.
“When you have a statute that criminalizes such a broad set of behaviors that everybody’s a criminal, everybody who has changed a diaper, every physician or nurse who has examined the genitals of a child, that’s a huge problem,” defense attorney Russ Richelsoph told The Republic.
Maricopa County Attorney Bill Montgomery disagreed and believes some common sense has to be observed.
“I’m a parent. I have prosecutors who are parents,” Montgomery said. “We know the difference between diapering and molesting a child.”
Montgomery said prosecutors handle such cases carefully.
“If a defendant is going to bring that up in trial and we don’t have any evidence to show that there was sexual motivation, then juries are not going to convict, grand jurors are not going to indict,” he told KPNX.
The court ruling said that changing the law was the responsibility of politicians.
“We agree that the criminal code should clearly differentiate between unlawful conduct and innocent, acceptable behavior without unnecessarily broadly sweeping the latter into the former,” the court opinion stated, The Republic reported.
Two judges authored a dissenting opinion.
“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 dissenting judges argued.
Richelsoph described scenarios in which the legislation could be abused.
“Physicians get accused of molesting children. Parents, especially in divorce situations, get accused of molesting children,” Richelsoph added. “And then you have someone spending a lot of money on a private defense attorney or having to get a public defender.”