In every state but one, sexual intent is an essential element of child molestation. Arizona is unique in criminalizing a wide range of innocent conduct that involves directly or indirectly touching children's private parts, including bathing, diapering, or circumcising them. Instead of requiring prosecutors to prove sexual intent, Arizona's law puts the burden on defendants to prove a lack of sexual intent. According to a recent ruling by a federal judge in Phoenix, that shift poses "a grievous threat to due process of law," because "the defendant bears the burden of disproving the very thing that makes child molestation child molestation."

Last week U.S. District Judge Neil Wake overturned the 2007 conviction of Stephen May, a former schoolteacher and swim instructor who was sentenced to 75 years in prison for child molestation after he was accused of inappropriately touching four children during swimming lessons at a community pool in Mesa. "The State deprived May of his constitutional right to due process of law and proof of guilt beyond a reasonable doubt," Wake writes. "By crafting its child molestation law as it did, Arizona spared itself from proving sexual intent and instead burdened May with disproving it. Absent sexual intent, however, all the conduct within the sweep of the statute is benign, and much of it is constitutionally protected."

Arizona defines child molestation, a Class 2 felony punishable by a minimum sentence of 10 years, as "intentionally or knowingly" engaging in "sexual contact" with a child younger than 15. It 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." The law allows an "affirmative defense" that the contact "was not motivated by a sexual interest," which the defendant must prove by a preponderance of the evidence.

On its face, Wake notes, Arizona's law "criminalizes diapering and bathing infants and much other innocent conduct," including "circumcision of babies, a ritual practiced in several religious faiths." He cites "a recent prosecution in Pima County, Arizona, where a father was put to his proof through trial for child molestation while bathing his daughter." (He was ultimately acquitted.) Even in jurisdictions that require proof of sexual intent for a conviction, Wake notes, quoting a California Law Review Article, there have been "disputes in which a father is [criminally] accused in connection with giving a child a bath; wiping his daughter after going to the bathroom; dealing with incontinence issues; giving kisses in the context of play, after a bath, or diaper change; and even tucking his daughters into bed."

When prosecutors do not have to prove sexual intent, it is much easier to convict innocent people in such cases. "The language of the elements describes benign and constitutionally protected behavior that could only become wrongful with sexual intent—the very fact the Arizona law forces the defendant to disprove," Wake observes. "This is convicting people without proof of wrongdoing because they have not disproved the only thing that could color their conduct as culpable."

Due process requires the government to prove all elements of a criminal offense beyond a reasonable doubt. Wake is rightly alarmed by Arizona's attempt to escape that obligation by treating an essential element of the offense as something the accused must disprove through a so-called affirmative defense. "In form," Wake says, "Arizona has written sexual intent out of its child molestation law—but in substance it is still at the center of the crime. All that has changed is who has to prove or disprove it."

If sexual intent is not an essential element of child molestation in Arizona, Wake writes, we would have to believe that "Arizona really thinks children's hygienic care, bathing, medical care, athletics, religious circumcision, and all other occasions for touching private parts are wrongful in themselves without more. But they are not inherently wrongful, and the legislature surely did not mean to prohibit all such acts apart from the sexual intent of the actor." Hence "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."

Arizona maintains that legislators have unfettered discretion to define the elements of a crime and provide for affirmative defenses. "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," Wake writes. "According to the State, the constitutional limit is entirely a matter of form: lawmakers can force the accused to prove or disprove any fact as long as the legislature is careful to call the arrangement an 'affirmative defense.'…The State's stance is antithetical to the very requirement of proof beyond a reasonable doubt."

Last fall Maricopa County Attorney Bill Montgomery, whose office prosecuted May, told The Arizona Republic there is no need to worry that innocent contact with children will be treated as molestation. "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."

Wake is not impressed by the promise that the government will be careful not to prosecute innocent people. "Discretionary enforcement assumes laws that by their terms and in good faith distinguish the prohibited wrongful conduct from innocent conduct," he writes. "Just trusting the government to do the right thing is poor dressing for constitutional wounds….A regime in which everyone starts out guilty and law enforcement decides who has to prove himself innocent is not the rule of law. It is a police state."

Wake plausibly concludes that forcing the government to prove sexual intent could have made a crucial difference in May's trial. He notes that even under Arizona's prosecution-friendly law the jury had trouble reaching a verdict. It deadlocked twice during two days of deliberations, prompting the judge to declare a mistrial. The jurors were on the verge of going home when they decided to try one more time, and neither side objected. After deliberating for another day, the jury acquitted May of two counts and convicted him of five, for which he received five consecutive 15-year sentences. May is now free after serving 10 years of what amounted to a life sentence, but the Arizona Attorney General's Office is asking the U.S. Court of Appeals for the 9th Circuit to reverse Wake's ruling.