Michael Kiefer

The Republic | azcentral.com

A U.S. District Court judge in Phoenix has found unconstitutional an Arizona law defining child molestation, and he ordered that a man who already has spent a decade in custody be released.

In 2007, a Maricopa County jury found Stephen May guilty of five counts of molestation of a child and acquitted him of two other counts. An eighth count was dismissed by prosecutors.

May was a former schoolteacher and swim instructor, and the charges came from allegations that he touched children inappropriately while giving them swim lessons. May denied there was any sexual intent on his part.

But the law was written in such a way that intent was not required as an element of guilt.

The statute defines sexual contact as "any direct or indirect touching, fondling or manipulating" of a child's genitals or private parts. But there is no additional clause requiring that the touching coincide with an intent to harm, violate or arouse.

When the Arizona Supreme Court in a 3-2 ruling upheld the law in another man's case last September, the story went viral after the two dissenting justices noted that even parents diapering children could be charged with the crime.

May appealed his conviction in Arizona state court, arguing that his attorney had not provided effective counsel by not challenging the constitutionality of the law. When he lost, he took his case to federal court.

On March 28, U.S. District Court Judge Neil Wake declared the statute unconstitutional and ordered that May be released. He has been.

The Arizona Attorney General’s Office, which represented the state in federal court, declined to comment on the ruling, but court records show it has appealed the case to the 9th U.S. Circuit Court of Appeals.

Wake’s 39-page order throwing out the conviction was strongly worded.

“Petitioner Stephen May was convicted under Arizona’s child molestation law, which does not require the state to prove the defendant acted with sexual intent,” it began. “Rather, once the state proves the defendant knowingly touched the private parts of a child under the age of 15, to be acquitted the defendant must prove his lack of sexual intent by a preponderance of the evidence. Arizona stands alone among all United States jurisdictions in allocating the burden of proof this way. Arizona is the only jurisdiction ever to uphold the constitutionality of putting the burden of disproving sexual intent on the accused.”

Wake wrote that the law violated the due-process clause of the 14th Amendment by making the defendant prove that he or she did not have sexual intent, rather than making the state meet the burden of proof.

“Absent sexual intent, however, all the conduct within the sweep of the statute is benign, and much of it is constitutionally protected,” Wake wrote.

In other words, doctors examining children, parents or caregivers wiping children after they go to the bathroom, or tending them in other hygienic or instructional ways would make them liable.

And Wake noted that the jury that convicted May had struggled with the concept, twice telling the trial judge that it was at an impasse. The judge had already declared a mistrial when the jury suddenly informed the court that it had reached guilty verdicts.

The federal judge's ruling frees May, but may not as yet have farther-reaching effects.

The Maricopa County Attorney's Office, which originally prosecuted May, said late Tuesday that the federal court's ruling wasn't binding on the state because the state Supreme Court had already upheld the law.

Amanda Jacinto, a spokeswoman for the office, said the U.S. Supreme Court had already declined to review the previous case on the issue.

"Of particular note," she said, "is the lack of respect from a federal district court for the state Supreme Court."

Last fall, Maricopa County Attorney Bill Montgomery told The Arizona Republic that prosecutors always take into account sexual motivation when determining whether to prosecute a case, and that they know which cases to charge.

"I understand this statute is on the books not to prohibit any kind of contact between an adult and a child, but to prevent the preying of an adult on a child for a sexually motivated purpose," he said. "If someone intentionally touched a small child's body but it was in the course of something legitimate like diapering, like bathing, you're not going to be subject to a charge."

"You write into the law that we have to prove sexual motivation and now you have created a burden that currently does not exist in Arizona law," Montgomery said. "You will do it to the detriment of young children. It will make it more difficult to hold those offenders accountable."

Wake did not accept the argument that police and prosecutors know which people to charge.

“The intuition that the State will only charge people who cannot disprove sexual intent may leave some comfortable that the right people are being convicted,” he wrote. “But it is the very role of proof beyond a reasonable doubt to sort out who should be convicted from who should not. It is a limitation on the State’s means of convicting, and it does not yield because the State picks the right people to prosecute. Reliance on that intuition reveals again what the State is doing here: freeing itself from proving an essential element of guilt because the prosecution has a pretty good idea who is guilty and the accused probably won’t disprove it. To give that thought any purchase is to repudiate at its core the constitutional mandate that the state prove guilt beyond a reasonable doubt.

“It is entirely obvious that sexual intent remains at the core of Arizona’s child molestation law, and no amount of oxymoronic labels about affirmative disproof disguises that. Counsel for the State deserves credit for candor in positing his defense on a complete absence of any constitutional limit on a state’s ability to shift burdens of proof on elements of crimes to defendants, as long as it uses the magic words.”

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Changed a diaper? In Arizona, you could go to jail