Russell Hebets Sept. 22, 2016

Can Changing a Diaper Land You In Jail?

In Arizona, a state never afraid of controversy, the answer seems to be yes.  Jerry Charles Holle was recently charged and convicted in Arizona of sexual abuse of a minor, sexual conduct with a minor, and child molestation.  He was accused of kissing and inappropriately touching his 11 year old step-daughter.  While this case clearly doesn’t involve diapers, stick with us, because we get there.  At issue in this case is the definition and application of the law that Mr. Holle was charged under.  Arizona defines “sexual contact” as "any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact." Conspicuously missing from this definition is any mention of the intent of the touching, i.e. sexual arousal.  In Colorado, for example, the definition of sexual contact is very similar, but includes at the end of the definition the language “for the purposes of sexual arousal, gratification, or abuse.”  Arizona has no such requirement, and this lack of intent leads to some very significant and disturbing potential consequences.

Any Touching Really Does Mean Any Touching

Imagine this, you are a daycare worker juggling the needs of 10, or 5, or even 1 baby.  Part of the job is dirty, smelly, and thankless.  Unless you want to be grilled on why the little bundle of joy in your care sat in a dirty diaper all day, you are the lucky one who gets to change it.  That changing involves cleaning the baby up and by necessity requires touching the genitals or anus of the child.  How about a pediatrician checking to ensure that a child is developing properly?  How about giving your baby, or any baby a bath?  All of these circumstances would be a sex offense under this Arizona law.

Is There a Defense?

OK, so you’re charged with a sex crime for giving a baby a bath.  Don’t they have to prove that you touched them to get your perverted sexual kicks?  According to the Arizona Supreme Court, the answer is no.  Simply by touching the baby, you are a child molester under Arizona law.  There is an affirmative defense to this charge which allows you to argue that you had no sexual intent, but this defense must be proven by you, not by the prosecution.  As dissenting Chief Justice Bales writes, you “will likely find little solace from the majority’s conclusion that although [you] are a child molester or sex abuser under Arizona law, [you] are afforded an ‘affirmative defense’…that their touching ‘was not motivated by a sexual interest.’”

In the justice system, this means that the prosecutor would only need to prove that you touched a bathing baby, or the daycare worker touched the baby while wiping them, or the doctor touched the patient.  No further proof would be needed for a conviction.  Even if you successfully argue the affirmative defense that you were simply giving a bath without sexual intent, you didn’t prove that you are not a sex offender. Instead, you proved that although you’re a child molester under Arizona law, your actions were excused and you get to avoid punishment. 

How Is This Decision Justified?

The court does a dismal job of justifying the result of this case.  They cite the due process rights of parents to care for their children, which neither prevents criminal charges nor addresses daycare workers or other non-family members.  The Arizona Supreme Court ultimately rests on its apparent total and complete confidence in the integrity, impartiality, and moral compass of the state’s prosecutors.  The majority of the court suggests that prosecutors will exercise their discretion to not “improperly” prosecute technical violations in all situations. Now if you believe that, I have a bridge that I want to sell you.