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In AZ, It Is Now Possible To Be Charged W/ Sexual Abuse For Changing A Diaper

TheGoverness said:
Really? Just fix the loophole for Christ's sake!
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Agreed.

If parents don't clean up after their infants / toddlers, aren't they likely to be prosecuted for child neglect?

I call again for a "legislative accountability act", where crap bills like this have a negative feedback look to the legislation. Without this feedback loop, we are only guaranteed more crap legislation of this ilk.
 
Fishking said:
Two things really stand out (aside from all the other obvious stuff):

1. The burden of proof is on the defendant? Since when has that ever been how our courts work?
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Geoist said:
The very fact a prosecutor can bring charges in the first place is what's so absurd. 90% of cases are settled out of court, mainly because court is so damn expensive.

You also neglect the fact these judges are putting the burden of proof on the defendant. That is outrageous in this country!
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This is a COMMON aspect of our laws. Consider, for example, a claim of self defense. George Zimmerman never claimed that he didn't shoot Trayvon Martin. He claimed that he did so in self defense and then was required to prove that fact. This works the same way. If someone is accused of child molestation for changing a diaper all they have to do is prove that there was no sexual motivation for doing so.

Yes, a prosecutor may bring a frivolous case at some point. It happens now but it is also exceedingly rare because a prosecutor must also consider the likelihood that a defendant will prevail with their affirmative defense. Why else do you think we have so many threads around here regarding why some cop got off for shooting some poor, mistreated victim of society? It's because no reasonable jury will dismiss their defense.
 
Geoist said:
Nice straw man.



The courts are also supposed to make clarifications to the law so there is no room for misinterpretation. As written, the law allows for law-abiding parents to be prosecuted (the judges even admitted as much).
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They can strike down a law, they can't re-write one.
 
Lutherf said:
This is a COMMON aspect of our laws. Consider, for example, a claim of self defense. George Zimmerman never claimed that he didn't shoot Trayvon Martin. He claimed that he did so in self defense and then was required to prove that fact.
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No, the prosecution had to prove Zimmerman did not act out of self-defense. They failed to do so.
 
Common Sense 1 said:
Who would charge or why would a parent or guardian be charged if all they were doing is changing diapers?
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They are highly unlikely to use it against your average parent with a young child. However, if prosecution wants to go after somebody for unrelated reasons, it could potentially be used as a tool against them. Would it hold up in court? Very unlikely. But the process, and costs, and reputation loss can be more than enough for the accused to seek a deal with prosecution.
 
Lutherf said:
This is a COMMON aspect of our laws. Consider, for example, a claim of self defense. George Zimmerman never claimed that he didn't shoot Trayvon Martin. He claimed that he did so in self defense and then was required to prove that fact. This works the same way. If someone is accused of child molestation for changing a diaper all they have to do is prove that there was no sexual motivation for doing so.
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No, it's innocent until proven guilty. Notice the onus for proof is on the prosecution. The defense presents their evidence to rebut the case that is being made against them.

Yes, a prosecutor may bring a frivolous case at some point. It happens now but it is also exceedingly rare because a prosecutor must also consider the likelihood that a defendant will prevail with their affirmative defense. Why else do you think we have so many threads around here regarding why some cop got off for shooting some poor, mistreated victim of society? It's because no reasonable jury will dismiss their defense.
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The cops get off because of what I said above, you have to have proof that what they did was out of some particular motivation and that their response was outside what a reasonable person could be expected to do. Since their job entails so much use of force, by it's nature, then it's a hard sell for the prosecution.
 
Geoist said:
Correct. And a clarification =/= rewrite.
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Yes it does. If it changes the meaning of the law as it was written, then it's rewriting it. That's why the CONSTITUTION only allows the Judicial to toss a law, it does not give the Judicial the ability to change a law. Otherwise, the Judicial would have no check on it and would be able to write any laws it wanted, including (as an extreme example) the ability to strip Congress of it's right to impeach judges.
 
Geoist said:
This stems from the case State v. Holle.

State legislature had a law passed which forbid: “intentionally or knowingly … touching … any part of the genitals, anus or female breast” of a child “under fifteen years of age.”

^Interestingly enough, the statute does not require the touching to be of a sexual nature.

Arizona's Supreme Court refused to fix this loophole in State v. Holle. They declared that while a defendant could still claim no "sexual motivation" in the contact, the burden of proof lies with the defendant, not the prosecution. The judges shrugged off the potential for parents being prosecuted for changing/bathing their children stating:

"We cannot and will not assume that the state will improperly prosecute persons who, though perhaps technically violating the terms of broad statutes [], clearly engaged in reasonable, acceptable, and commonly permitted activities involving children."


Yeah, because there is no such thing as an overzealous prosecutor...

Arizona child sexual abuse law guts due process for parents and caregivers.
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Like minimum sentencing guidelines, the first people to be charged under such ridiculous laws will be minorities due to a prosecuter trying to act "tough on crime". Like all those 17 minority kids who got charge for 30 year minimum sentences for having consensual relationships with their 15 year old girlfriends.
 
faithful_servant said:
Yes it does. If it changes the meaning of the law as it was written, then it's rewriting it.
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So the legislators who made this Arizona law intended for it to criminalize changing diapers and bathing infants? How interesting.
 
Lutherf said:
Common sense? Like letting a pedophile off the hook because he says "I had no sexual intent in humping my 11 year old granddaughter"?
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Ever hear of a prosecutor going balls to the wall on a case because the law was poorly written and allowed him to do so?


https://www.techdirt.com/articles/2...fter-judge-criticizes-novel-prosecution.shtml
After two years, the DOJ has decided to drop its bogus conspiracy/drug trafficking case against Federal Express. In July 2014, FedEx was hit with an indictment for allegedly knowingly delivering illegal/counterfeit drugs to a handful of sketchy recipients.

The government insisted FedEx perform interdiction efforts for it by opening boxes and determining (without guidance) whether or not the contents were legit. FedEx pointed out that it was in the package delivery business, not the law enforcement business. The DEA shrugged and said, "Do better." FedEx said, "Why don't you give us a list of people/businesses you think are engaged in illegal activities?" The DOJ refused to do so and rewarded FedEx's good faith efforts with an indictment.
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Lutherf said:
I am so aware. However, this particular area isn't one where we could reasonably expect such craziness. There isn't much in the way of political or economic incentive to start prosecuting parents for changing the diapers of their infant children.
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It doesn't matter what you expect. What matters is that the law is poorly written and it's just a matter of time before a prosecutor on a power trip is harrassing some hapless citizen.
 
can the baby claim self defense if it kills the offending changer?
 
Geoist said:
So the legislators who made this Arizona law intended for it to criminalize changing diapers and bathing infants? How interesting.
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No. It was a badly written law. That doesn't give the judicial the right to change it, but if it violates the Constitution, they have the right to strike it down.
 
Geoist said:
Holle appealed his conviction to the Arizona Supreme Court. It was their SC justices who stated 1. the burden of proof was on the defendant and 2. that although technically a parent may be charged with sexual assault for bathing/changing their child prosecutors won't file such charges.
Can You Be Convicted of Child Molestation in Arizona for Changing a Baby's Diaper? : snopes.com
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Apparently Snopes is also coming under scrutiny as of late; they discovered it's a two person operation.
 
faithful_servant said:
No. It was a badly written law. That doesn't give the judicial the right to change it, but if it violates the Constitution, they have the right to strike it down.
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Changing diapers is now a medical procedure that needs a license to practice. :lol:
 
Geoist said:
This stems from the case State v. Holle.

State legislature had a law passed which forbid: “intentionally or knowingly … touching … any part of the genitals, anus or female breast” of a child “under fifteen years of age.”

^Interestingly enough, the statute does not require the touching to be of a sexual nature.

Arizona's Supreme Court refused to fix this loophole in State v. Holle. They declared that while a defendant could still claim no "sexual motivation" in the contact, the burden of proof lies with the defendant, not the prosecution. The judges shrugged off the potential for parents being prosecuted for changing/bathing their children stating:

"We cannot and will not assume that the state will improperly prosecute persons who, though perhaps technically violating the terms of broad statutes [], clearly engaged in reasonable, acceptable, and commonly permitted activities involving children."


Yeah, because there is no such thing as an overzealous prosecutor...

Arizona child sexual abuse law guts due process for parents and caregivers.
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Excellent :). Young women in AZ who want guaranteed legal protections against rape should can now just wear diapers.
 
Fishking said:
No, it's innocent until proven guilty. Notice the onus for proof is on the prosecution. The defense presents their evidence to rebut the case that is being made against them.
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That's true in general. But a law that requires the defendant in a murder case to prove he acted in self-defense doesn't necessarily violate due process. See Martin v. Ohio, 490 U.S. 228 (1987). (Warning: The reasoning in Martin is complex and not easy to follow.)
 
matchlight said:
That's true in general. But a law that requires the defendant in a murder case to prove he acted in self-defense doesn't necessarily violate due process. See Martin v. Ohio, 490 U.S. 228 (1987). (Warning: The reasoning in Martin is complex and not easy to follow.)
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Yes, I can see that because it's accepted that one person killed another. So now the body of evidence has to focus on why or anyone could be capping anyone, all the time.
 
Geoist said:
This stems from the case State v. Holle.

State legislature had a law passed which forbid: “intentionally or knowingly … touching … any part of the genitals, anus or female breast” of a child “under fifteen years of age.”

^Interestingly enough, the statute does not require the touching to be of a sexual nature.

Arizona's Supreme Court refused to fix this loophole in State v. Holle. They declared that while a defendant could still claim no "sexual motivation" in the contact, the burden of proof lies with the defendant, not the prosecution. The judges shrugged off the potential for parents being prosecuted for changing/bathing their children stating:

"We cannot and will not assume that the state will improperly prosecute persons who, though perhaps technically violating the terms of broad statutes [], clearly engaged in reasonable, acceptable, and commonly permitted activities involving children."


Yeah, because there is no such thing as an overzealous prosecutor...

Arizona child sexual abuse law guts due process for parents and caregivers.
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THis is what American government has long done, they write law that is so vague that they can come collect anyone they want any time they want. Up to now the American people have either been ignorant of this or we trust that the Government will only use this trick to get the "bad guys" off the street.

We be some stupid mother****ers.
 
Lutherf said:
This is a COMMON aspect of our laws. Consider, for example, a claim of self defense. George Zimmerman never claimed that he didn't shoot Trayvon Martin. He claimed that he did so in self defense and then was required to prove that fact. This works the same way. If someone is accused of child molestation for changing a diaper all they have to do is prove that there was no sexual motivation for doing so.

Yes, a prosecutor may bring a frivolous case at some point. It happens now but it is also exceedingly rare because a prosecutor must also consider the likelihood that a defendant will prevail with their affirmative defense. Why else do you think we have so many threads around here regarding why some cop got off for shooting some poor, mistreated victim of society? It's because no reasonable jury will dismiss their defense.
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Affirmative defenses are not usually brought before a jury to "prove" them to the standard you would imply ("beyond a reasonable doubt"). The defense must first show a judge that a "preponderance of the evidence" (i.e., a majority) supports a self-defense argument. When the case reaches a jury, it is the prosecution that must demonstrate to the jury "beyond reasonable doubt" that the incident was NOT self-defense. The motivation for self-defense is easier to demonstrate in light of the presence or perception of a clear threat. Usually a police report is filed on the event and the situation/evidence are documented to a degree by professionals.

How does one provide a "preponderance of the evidence" to support that the actions were benign? Dirty diapers are a dime a dozen and most "evidence" I can imagine is generally negative (i.e., things not present). What's a person to do, keep video of every time they bath/change a baby? Yeah, that'll work out...

Let's also not kid ourselves here. Divorce/relationships can get messy real quick and there is a relatively high likelihood that people will try and abuse the law.
 
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CycloneWanderer said:
Affirmative defenses are not usually brought before a jury to "prove" them to the standard you would imply ("beyond a reasonable doubt"). The defense must first show a judge that a "preponderance of the evidence" (i.e., a majority) supports a self-defense argument. When the case reaches a jury, it is the prosecution that must demonstrate to the jury "beyond reasonable doubt" that the incident was NOT self-defense. The motivation for self-defense is easier to demonstrate in light of the presence or perception of a clear threat. Usually a police report is filed on the event and the situation/evidence are documented to a degree by professionals.

How does one provide a "preponderance of the evidence" to support that the actions were benign? Dirty diapers are a dime a dozen and most "evidence" I can imagine is generally negative (i.e., things not present). What's a person to do, keep video of every time they bath/change a baby? Yeah, that'll work out...

Let's also not kid ourselves here. Divorce/relationships can get messy real quick and there is a relatively high likelihood that people will try and abuse the law.
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A proven fact, which makes bad law like this even more idiotic than normal.

When are we going to get to "ENOUGH!"
 
Fishking said:
Yes, I can see that because it's accepted that one person killed another. So now the body of evidence has to focus on why or anyone could be capping anyone, all the time.
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As I remember that case, that was not the rule in most states. Ohio's law on that subject was unusual, but the Court held it was not unconstitutional.
 
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