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

Geoist

Geoist

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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.
 
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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Really? Just fix the loophole for Christ's sake!
 
TheGoverness said:
Really? Just fix the loophole for Christ's sake!
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It is yet another example of how our leaders are so afraid of appearing soft on pedophiles, they would rather enforce boneheaded laws than exercise common sense. :doh
 
So your thought process is that a 6 month old who just had his poopy diaper changed by mommy is going to hop on the phone and call Goldberg and Osborne to represent him in a sexual assault on a minor case?

The courts are supposed to interpret statutory law, not rewrite it. That's what happened here.
 
Geoist said:
It is yet another example of how our leaders are so afraid of appearing soft on pedophiles, they would rather enforce boneheaded laws than exercise common sense. :doh
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Common sense? Like letting a pedophile off the hook because he says "I had no sexual intent in humping my 11 year old granddaughter"?
 
Lutherf said:
So your thought process is that a 6 month old who just had his poopy diaper changed by mommy is going to hop on the phone and call Goldberg and Osborne to represent him in a sexual assault on a minor case?
Click to expand...

Nice straw man.

The courts are supposed to interpret statutory law, not rewrite it. That's what happened here.
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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).
 
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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I do not know the specific details of Holle's case. For all I know, he could be guilty. This thread is about the possible ramifications of the Arizona SC judges' decision.
 
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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The Slate article is absurd. Here's your affirmative defense - "The baby had a diaper full of poop and since I'm not an abusive parent I changed it" or "The mother told me the baby hadn't had a bowel movement in 6 days so I, as a medical professional, administered an enema".
 
Geoist said:
I do not know the specific details of Holle's case. For all I know, he could be guilty. This thread is about the possible ramifications of the Arizona SC judges' decision.
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Of course you didn't pay any attention to the case. Why would you bother with that when Slate had a perfectly good article ripping on Arizona.
 
Lutherf said:
Of course you didn't pay any attention to the case. Why would you bother with that when Slate had a perfectly good article ripping on Arizona.
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Because the guilt/innocence of the accused had nothing to do with the law itself.
 
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.
Click to expand...

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?

2. The quote from the judge literally has him admitting that changing a diaper is a crime but is basically saying not to worry because it won't be prosecuted. That's not how laws are supposed to work. You don't make a law just to not enforce it.
 
Lutherf said:
The Slate article is absurd. Here's your affirmative defense - "The baby had a diaper full of poop and since I'm not an abusive parent I changed it" or "The mother told me the baby hadn't had a bowel movement in 6 days so I, as a medical professional, administered an enema".
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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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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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I haven't heard anything like it in this country, at least in recent history.


2. The quote from the judge literally has him admitting that changing a diaper is a crime but is basically saying not to worry because it won't be prosecuted. That's not how laws are supposed to work. You don't make a law just to not enforce it.
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Exactly!

At least some of us get the absurdity :)
 
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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Because humping an 11 year old is comparable with changing a diaper?
 
This is what happens when idiots get elected by idiots.
 
Lutherf said:
The Slate article is absurd. Here's your affirmative defense - "The baby had a diaper full of poop and since I'm not an abusive parent I changed it" or "The mother told me the baby hadn't had a bowel movement in 6 days so I, as a medical professional, administered an enema".
Click to expand...

Yet it's still against the law, as admitted by the judge.
 
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.
Click to expand...

It's easy. Don't use an elevator alone with a woman and don't allow kids anywhere near.
 
I strongly agree with the statements by the dissenting justices quoted in the article. They hit the nail right on the head. Overly vague statutes that do not give people fair notice of what acts are and are not legal violate the constitutional guarantee of due process of law. So do statutes that disrespect the presumption of innocence in criminal cases by shifting the burden onto the defendant to prove his innocence.

Not clear whether the Arizona constitution of the Constitution of the U.S. was involved in this decision, but the state and federal provisions are usually very much alike. In any case, state laws are invalid if they violate 14th Amendment due process.
 
Geoist said:
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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It happens regularly, all across this country, to male college students charged with rape and haled before leftist campus "courts." And real federal courts have been far too reluctant to find that the usual procedure in these kangaroo courts--which is for man-hating female professors or students to force the hapless guy to prove he's innocent of what some bitter ex-girlfriend has maliciously charged him with--violates due process.

What brought all this about was new rules put out by Barry the Red's Dept. of Education, which invite or even coerce colleges with any federal involvement to set up these kangaroo courts. Apparently the concern is that all those pure little Susies and Melissas on college campuses are so helpless that if not for the federal government's protection, mean men would force them to do disgusting sexual things they would never, ever--not in a million years--do of their own accord. Apparently women have changed since I was in college, when as often as not they were the ones proposing the sex.
 
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Unless I misread the case this is not a decision of the Arizona Supreme Court.

Court of Appeals of Arizona, Division 2. No. 2 CA–CR 2014–0268. Decided: September 16, 2015
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STATE v. HOLLE | FindLaw

That means it can still be appealed to the actual State Supreme Court. The original article misidentified the court by calling it the Supreme Court.

To appeal a decision from the court of appeals, the appellant must file a Petition for Review requesting a Supreme Court hearing. The Supreme Court judges, known as justices, evaluate the petitions for review and decide whether they will review the case. Unlike the court of appeals, the Supreme Court is not required to hear every appeal.
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AZ Courts

I believe an appeal to the State Supreme Court might affirm the conviction based on case facts, but reverse some of the points made about burden shifting and vagueness.
 
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matchlight said:
I happens regularly to male college students charged with rape and haled before leftist campus "courts." And real federal courts have been far too reluctant to find that the usual procedure in these kangaroo courts--which is for man-hating female professors or students to force the hapless guy to prove he's innocent of what some bitter ex-girlfriend has maliciously charged him with--violates due process.
Click to expand...

Do you have a link on these campus court cases? Not doubting, just curious.

I'm sure you recall the Duke Lacrosse rape case where the athletes were just assumed to be guilty of by many on campus. It turned out the stripper they hired made the whole thing up and the prosecutor continued to harass the players with charges despite knowing the "victim's" credibility was shattered. Now, of course rape/assault cases should always be taken seriously. But we should also resist throwing defendants under the bus before they even step into the courtroom. This Arizona law and the judges' decision just makes a mockery of the whole judicial system.
 
Captain Adverse said:
Unless I misread the case this is not a decision of the Arizona Supreme Court.

STATE v. HOLLE | FindLaw

That means it can still be appealed to the actual State Supreme Court. The original article misidentified the court by calling it the Supreme Court.

AZ Courts

I believe an appeal to the State Supreme Court might affirm the conviction based on case facts, but reverse some of the points made about burden shifting and vagueness.
Click to expand...

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
 
I've read this entire thread.



I'm still trying to wrap my head around this. It's that absurd. Are we SURE that we're not being punked some how? We've GOT to be. Geoist? Captain Adverse? Are you two sure you didn't make up an elaborate prank and made fake websites or something? Please say you are. This is just too unreal.
 
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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Thank you. The original article only cited the Appellate decision.

Hmmm. This is a 3 - 2 decision in which the Chief Justice's dissent reasoned as I would have expected, upholding the conviction on the specifics of the case while disagreeing on the vagueness and affirmative defense arguments of the majority.

I would immediately file an appeal with the U.S. Supreme Court, citing as did the dissent in Holle the SCOTUS position: "We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly." United States v. Stevens, 559 U.S. 460, 471 (2010). That was an 8 to 1 decision, with only Justice Alito dissenting.
 
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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.
Click to expand...

Who would charge or why would a parent or guardian be charged if all they were doing is changing diapers?

A few specifics about the case:
¶ 2 We view the facts in the light most favorable to sustaining Holle's convictions. See State v. Haight–Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App.2008). In February 2013, M.H. disclosed to a friend and school counselor that her grandfather, Holle, had touched her breasts, buttocks, and vagina on several occasions. After an investigation, a grand jury indicted Holle for molestation of a child, sexual abuse of a minor under fifteen, sexual conduct with a minor under fifteen, and aggravated assault of a minor under fifteen. The state alleged the first three charges were dangerous crimes against children (DCAC) and the fourth offense was committed for the purpose of sexual gratification.
 
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