Judge rules molestation conviction requires proof of intent

By Sandy….

A really bad law in Arizona, one that actually had the potential for the parents of an infant to be charged with sexual assault while changing his diaper, has been overturned. The law was written so that no sexual intent or motivation was required. According to the Arizona Republic, “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 intent to harm, violate, or arouse.”

Stephen’s parents are NARSOL members and our contacts in Arizona. He had been a schoolteacher and swim coach and in 2007 was convicted of a sexual molestation charge. Stephen denied there was any sexual intent on his part and appealed his case to the state court.

Judge Neil Wake of the U.S. District Court declared the statute to be unconstitutional on March 28 and ordered Stephen’s release. The state has appealed the case to the Ninth Circuit Court of Appeals.

The statute was written so that charges could conceivably be brought against “…doctors examining children, parents or caregivers wiping children after they go to the bathroom, or tending them in other hygienic or instructional ways…”

Eric Dubno of Fahringer & Dubno, NYC, was the lead attorney for the team that handled Stephen’s habeas petition.

NARSOL commends Judge Wake for this decision and celebrates with Stephen and his family. We will keep you apprised of the progress of the appeal.

Sandy Rozek

Written by 

Sandy, a NARSOL board member, is communications director for NARSOL, editor-in-chief of the Digest, and a writer for the Digest and the NARSOL website. Additionally, she participates in updating and managing the website and assisting with a variety of organizational tasks.

15 Thoughts to “Judge rules molestation conviction requires proof of intent”

  1. AvatarMad as Hell

    WTF!!!! Are you kidding me? Has the state legislature for AZ lost their collective damned minds in passing such an ignorant, and pathetic law? First of all, what parent does not touch their little ones up until a certain age, say at least 10. By age 4 a child should be potty trained. By 6-7 they are more than likely bathing on their own—my son was bathing himself at 5 and didn’t want me or his mother around and by 10, hell he thought he was a grown man. But children fro birth to say 2 maybe 3 need their parent’s helping hand. What, does not or do not any AZ legislator touch their children? Especially if any of them have small ones at home. Or do they just let their babies keep “S%#!” dippers on? WTF is this world coming to with this sex thing? Keep this up and 20 years from now it will be illegal all together to even make love to your spouse. WTF!!!

    1. sandysandy

      I think it only fair to say, in Arizona’s defense, that the intent of the statute was most likely not to make criminals of parents of small children. However, the way it was written, that could have occurred going by the letter of the law. And that makes for bad law, as Judge Wake wisely opined.

    2. AvatarLegislative questioning

      Be nice to see the legislative members and the governor hauled into a session to defend what they meant then when they created this law and debated it before passing it and having it signed into law. It is, maybe, all documented and can be reviewed by the public record (not sure if all committee meetings are documented for the public record and we know getting emails on the topic can be hard to get), but for them to defend themselves in front of someone or a panel and then learn how it could be thought of differently would be a concept worth the price of admission. A public second guessing of their work could possibly get them to maybe think more before actually seeing it to a vote? I said maybe, not realistically, because it would require an open mind for them to see the other ways it can be construed and legislatures rarely have open minds when it comes to other ways of thinking besides theirs. Legislative members are on the same level with attorneys in public opinion as given by their low ratings.

      Kudos to Judge Wake on this…..

    3. AvatarTim Mercer

      California Courts have held to such legal railroading for years. And it has paid the state well. State and County financial hoppers are filled with such lucrative unethically gained finances.
      But we “Californa” in our legislative efforts have taken it to a new level of insanity by adopting the California One Whitness law.. It states… ” Any one Whitness who’s testimony in not discredited begore a trier of fact is suficient for a verdict”
      In essence, burden of proof be gone.. It literally places the burden of proof on the shoulders of the defendant. And allows a conviction based on any statement made by any one person with no other required evidence.
      Further is allows prosecutors to shift the burden of proof upon any defendant with no redress required.
      When the right of any defendant is violated.. We are all at risk untill injustice is redressed..
      Bottom line is simple..

  2. AvatarJoe123

    Can we have the Prosecutor/Attorney General sued to hell for sending innocent people to prison? Can we at least force them to resign? People like this should be Locked Up, they’re a TRUE danger to society, well-intentioned or not.

  3. AvatarMike Flores

    This money scheme has gotten way out of hand and it is just damned ridiculous. This animals are taking away everything that is family, and I think they are doing this because maybe they are the ones with perverted intentions and they think that everyone is like them. We as a people need to unite and fight for our rights immediately because if we wait any longer they will take away everything that is family. I’ve read history books and came across how in the old days slave traders used to separate families not caring about the heartbreak these people were going through. In these times with these laws they are separating families the same way, not caring that the children miss their dads or their moms leaving without clue of what it is to have their accused parent around. I don’t agree with anyone raping or molesting another person, but not everyone that is accused is guilty, but if you put a grown person, and an under age kid on the stand the jury that don’t one thing about the accused will pretty much find you guilty because of the outcry.

    1. AvatarMaestro

      Mike Flores,

      You wrote:

      “maybe they are the ones with perverted intentions and they think that everyone is like them.”

      I’d like to say that this very thought has passed through my mind several times since experiencing the laws after my offense. I truly believe the MEN who make these laws have perverted thoughts. And some of them even act on them. Mark Foley, anyone?

  4. AvatarMad as Hell

    But Sandy, why this law at this time? I mean how long has parenting been around? Of course all of my 60 years and certainly way way way way back further than that; hell, my wife and I were even parents of a baby and raised him very well. And no one, to my knowledge at least, ever, ever, proposed any law of this type anywhere so I would not only have to question that individual(s) mental state but also their motivation(s). So Sandy in my opinion there is no defense for AZ for passing this type of law; also Sandy, please tell me how the hell is AZ going to ENFORCE this statute??? The only way I see police catching a parent bathing his/her 1 year is to either have a police officer in every AZ home, or, have CCTVs in every AZ home with police monitoring, or, have another parent or family member snitch the other parent or family member out. What this statute will do is make parents close their homes off and keep everything IN HOUSE a secret; don’t let the Government be quartered in your home!That is your home, your privacy, your family and therefore you parent your children in the best manner you see fit. Sandy, this is bad law plain and simple and there is NO DEFENSE for AZ in passing this law!!!

    1. AvatarCurtis McPhetridge

      This is the most crazy and insane law I have ever heard of. How are parent supposed to teach and take care of their kids. These law makers all need to be fired and locked up for being to stupid and don’t need to be in society because they are a danger to everybody else including there own families. The judge made the right decision and AZ should be ashamed of themselves for passing such an insane law. This is what society has turned into a bunch of stupid individuals who know nothing about anything and have nothing else better to do than make up retarded laws like this. How shameful is this. I will never go to AZ now.

  5. AvatarTwist the law like a pretzel

    Mens rea is a tricky thing when someone gets a hold of it and decides to manipulate it when it did not exist in the first place…

    Mens rea = criminal intent (short definition)

    1. AvatarTim Mercer

      Its a simple conclusion.. They write such laws because it pays the state well. 300k for a two day trial..

  6. AvatarDue process still exists

    This is from another SOL website that was too good to not share here:

    ” ‘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.

    The due process clauses of the Fifth and Fourteenth Amendments ‘[protect] the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’

    Seemingly the Maricopa County Attorney’s Office wants to skip over the part where one is considered innocence until proven guilty by a jury of his peers, and just lock people up.”

    Hopefully, if the appeal is heard at the next level, they realize this basic fundamental part known as due process of the law still exists in our country and shouldn’t be disregarded just because AZ law does not specifically call it out.

  7. AvatarNH Registrant

    If that “law” was allowed to continue, it would have made EVERY SINGLE PARENT ever into an “offender”. What ridiculousness! Who wrote that ridiculous law? Who’s hair-brained idea was it? They should be removed from the ability to write ANY laws in the future and SHAME on on the state of Arizona for going to the appeals process! Are these people totally insane? Do they not realize the scope of what they are doing? This kind of insanity in our governments really bothers me to the core! It should bother EVERYONE to the core who has an ounce of sanity and common sense!

  8. Now what about everyone who’s been charged who isn’t guilty? Their mugshots are probably still online.

  9. AvatarMaestro

    Ok, hold on a moment,,, So basically, some baffoon in the Arizona legislature decided to write a law that would make changing a baby’s diaper a “sex offense”?
    Has this law-maker considered maybe having his/her own parents charged with a sex offense for changing his/her diaper as a child?
    As far as I know, ALL sexual offenses no longer have a statute of limitations so…..someone please bring charges against the parents of the (now adult) law-makers. That’ll learn ’em!

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