Prosecutors Would Never Do Something Like That

September 16, 2016 (Fault Lines) — In Arizona, the legislature for some reason decided to define sexual abuse and molestation of a child in such a way that intentionally or knowingly touching the genitals or anus of a child or the breast of a female younger than fifteen is a felony. That should come as no surprise to anyone who is remotely familiar with Arizona, as the one thing the legislature is good at is passing the broadest and most Draconian criminal laws they can imagine.

What might come as a surprise is that, thanks to the Supreme Court of Arizona’s opinion in State v. Holle, the terms of the statute are to be applied literally. According to the court, the defense that there was no sexual motivation is one the defendant must prove by a preponderance of the evidence. The excellent dissent in the case highlights the obvious problem:

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. They also will likely find little solace from the majority’s conclusion that although they are child molesters or sex abusers under Arizona law, they are afforded an “affirmative defense” if they can prove by a preponderance of the evidence that their touching “was not motivated by a sexual interest.” Such a defense, as the majority notes, does not mean that a crime has not occurred, but instead that the miscreant may avoid “culpability” by persuading the factfinder that the “criminal conduct” should be excused.

Perhaps even more concisely, the dissent later frames the issue as follows:

My difference with the majority turns on a fundamental question: may the state, consistent with due process, sweepingly criminalize a broad range of conduct embracing both innocent and culpable behavior and assign to defendants the burden of proving their innocence?

There’s a special sort of insanity about the relationship between Arizona’s lawmakers and the courts. The lawmakers are crazy to start. They’ve proven over and over again that they’re incapable of controlling themselves. They couldn’t avoid hysteria and draft reasonable, limited laws when it comes to things that frighten them if their lives depended on it.

As for what they passed regarding sex abuse and molestation, it seems they’re either too stupid to realize what they’ve done or they’re pretty sure prosecutors wouldn’t target anyone who matters to them. I find it hard to believe none of them have ever had children or know anyone who’s had children, or that they’re all so sheltered from the reality of the system that they don’t believe the tremendous power they’ve given prosecutors could be abused.

The courts, on the other hand, should know better. Our legislature is out there passing terrible laws as if they were paid by the injustice. It’s impossible that three intelligent justices don’t see the problem with the laws they’re upholding. The courts, instead of keeping our lawmakers honest, have instead opted to craft ostensibly thoughtful and well-reasoned opinions allowing the legislature to do whatever ridiculous and often horrible things pop into their heads.

One of the more concerning parts about Holle is how calmly and rationally the court justifies making every parent in Arizona a sex offender tasked with proving his or her innocence should a prosecutor decide to ruin his or her life with charges. What makes it worse is how much support they have for doing so. The statutes in question do just list mental states of intentionally or knowingly, and a lack of sexual motivation does just appear in a separate law listing defenses. The court’s statutory interpretation might be sound, and there are decades of state and federal cases arguably condoning the sort of burden shifting the statutes accomplish as interpreted.

Perhaps the most disturbing part about the opinion is the majority’s reliance on prosecutorial discretion to seemingly assuage any uneasy feelings someone might have about a law that would presumptively put every Arizona parent on the sex offender registry if it was to be strictly enforced. The court’s analysis is a perfect example of the sort of fiction courts here seem to believe, or at the very least pretend to be the case, when it comes to prosecutors not behaving the way they’ve shown time and time again that they’re going to behave:

Holle’s bare assertion that, absent a sexual motivation element, [the laws] will hypothetically lead to absurd prosecutions does not warrant ignoring the plain language of the subject statutes. 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.

The court then cites Ethical Rule 3.8, a prosecutor’s responsibility of a minister of justice and not simply that of an advocate, apparently completely unaware of the fact that news stories abound of Arizona prosecutors pushing the envelope of the ethics rules and beyond, often with impunity, and that the most powerful prosecutor in the state was disbarred for abusing his power not too long ago.

The majority’s firm language gives the impression they’re trying to convince themselves it’ll all be okay:

Finally, the dissent repeats Holle’s hypothetical, unrealistic concerns about subjecting to criminal prosecutions parents or other child caregivers changing diapers. But if a prosecution actually were to result from such innocent behavior (no such case has been cited), an “as applied” constitutional challenge would likely have merit in light of parents’ fundamental, constitutional right to manage and care for their children.

It’s obvious the justices of the court aren’t a group with a lot of criminal defense experience. If they were, they’d see that concerns about overreaching prosecutions are anything but hypothetical and unrealistic, but rather the sort of thing that defense lawyers battle daily. Moreover, the sentencing laws are so harsh and courts statewide are so unwilling to dismiss sex charges based on as-applied constitutional challenges short of trial and a conviction that that most of the innocent victims of our laws will plead guilty or sit in prison for quite some time waiting to clear their names following an unconstitutional conviction.

The majority’s opinion can really be summed up as “just trust them.” Given the sad reality of how things work here, that’s a terrifying proposition.

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