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Bill would carve exemption for caretaking into sexual contact with minors law

Alarmed by claims that people could be imprisoned for changing a diaper, a House panel voted Wednesday to craft an exemption to laws criminalizing sexual contact with minors.

HB 2283 would say that the laws on child molestation do not apply to touching, fondling or handling “that a reasonable person would recognize as normal caretaking interactions or responsibilities with a minor or vulnerable adult.” The 8-1 vote by the House Committee on Judiciary and Public Safety sends the measure to the full House.

The legislation is the direct outgrowth of a 3-2 ruling by the Arizona Supreme Court in 2016 involving the case of a man convicted of inappropriately touching his 11-year-old step-granddaughter.

Arizona law does allow someone charged with child molesting to claim that the action was “not motivated by a sexual interest.” But the burden is on that person to prove that to a jury.

Rep. Anthony Kern (R-Glendale)

Rep. Anthony Kern (R-Glendale)

Rep. Anthony Kern, R-Glendale, said that’s not fair. But he is not alone in his concern.

In a dissenting opinion in that case, Chief Justice Scott Bales warned that the wording of the Arizona law allows someone to be not only prosecuted but also convicted without the state ever having to show the adult was touching the private parts of a child for an improper reason.

“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,” Bales wrote at the time. And he said it is insufficient that a person, once arrested, might be able to escape conviction by providing proof the touching was not motivated by a sexual interest.

Kern said that’s not the way criminal cases should go.

“The government should always have to prove intent,” he argued.

In some ways, the Supreme Court invited the kind of legislation that lawmakers now are considering.
Justice John Pelander, in writing the majority opinion in that 2016 case, said the courts are bound to follow the law as written by the Legislature. He said that defining what constitutes a crime is “solely within the purview of the political branches of government, not the courts.”

The legislation approved Wednesday is actually watered down from what Kern originally wanted. He had proposed that prosecutors should be required to prove that someone acted “with an intent to abuse, humiliate, harass, degrade, arouse or gratify the sexual desire of any person.”

That language drew an objection from Kathleen Mayer, a deputy Pima County attorney. She said it would be difficult to prove the intent of the person who did the touching, especially if the victim is a child and cannot spell out if she or he feels humiliated.

Mayer said that’s not just an academic concern. She cited the recent conviction of Dr. Larry Nassar on multiple charges of molesting members of the U.S. Gymnastics Team over a period of years.

She said there is no question but that prosecutors could prove that the touching was not medically necessary. But she said it would have harmed efforts to prosecute him if the government had to prove Nassar intended to humiliate or harass them.

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