NARSOL supports man who won rare constitutional challenge

By Larry Neely . . . The National Association for Rational Sexual Offense Laws (NARSOL) has filed an amicus curiae brief in the United States Court of Appeals for the Ninth Circuit in support of Stephen Edward May, whose conviction for child molestation in an Arizona case has been set aside by the federal court in Arizona. NARSOL’s interest in May’s case rests on the Arizona statute defining the offense of child molestation to require the accused to prove that any contact with an underage child did not result from a sexual interest or motivation. The law, which was upheld by the Arizona Supreme Court in State v. Holle, 240 Ariz. 300, 379 P.3d 197 (2016), essentially requires an accused to prove that he is not guilty of the crime, rather than preserving the traditional presumption in American law that the individual is presumed innocent until proven guilty.

The United States District Court granted habeas corpus relief (set aside his conviction) in Stephen May’s case, finding that his counsel’s failure to challenge the Arizona statute on constitutional grounds violated his right to effective representation. It based its decision on the obvious constitutional flaws in the statute and the Holle court’s decision upholding the requirement that the accused charged with child molestation prove to the jury that he did not act with any sexual intent when coming in contact with a child under the age of fifteen years. The District Court found that the current approach upheld in Holle was inconsistent with the history of Arizona sexual offense laws, which required the prosecution to prove that the defendant’s actions were motivated by sexual interest.

NARSOL’s involvement is prompted by the real threat that the Arizona approach to shifting the burden of proof from the prosecution to the defense will spread to other states if the Ninth Circuit rules against May on the fundamental issue of proper assignment of the burden of proof in criminal cases to the State.   Currently, only Hawaii has started down this road to easing the burden traditionally imposed on the State to prove an individual’s guilt beyond a reasonable doubt before convicting and incarcerating him.

“The danger in shifting the burden of proof to an accused to disprove guilt or prove innocence is heightened in the context of sex offense prosecutions,” explained J. Thomas Sullivan, NARSOL’s attorney in its May amicus brief, “because these cases may be lacking in forensic evidence, or credible testimony from complainants, who may be misled into fabrication or misunderstand the requirement for truth when influenced by adults who hold positions of responsibility, such as investigators or often-well-meaning counselors. The consequences of an improper conviction of an innocent person are staggering, including imprisonment, a lifetime of stigma and public shaming, as well as lifetime or extended periods of registration and restrictions on personal freedom. Any compromise of the guarantee of due process is most unfair and dangerous in sexual offense prosecutions.”

In the amicus brief, Sullivan, a Distinguished Professor of Law, also argued that by requiring accused persons to prove the negative by convincing jurors or trial judges that they did not act with sexual motivation, the Arizona statute forces the accused to waive the right to remain silent and testify at trial. “It seems clear that jurors will expect an accused denying sexual motivation to offer his own personal testimony on that point. Frankly, in almost every case, it is only the accused who knows whether he was motivated by sexual interest in any circumstance in which improper contact with a child is alleged.”

“The number one fear that most people admit involves a fear of speaking in public. Unfortunately, the realities of trial are such that many defendants are simply not able to testify convincingly because they are afraid and because there is so much riding on their performance,” Sullivan added. “They face cross-examination by skilled prosecutors who are trained to shred the testimony of inexperienced witnesses who must testify before strangers on the most sensitive of matters with fear and lack of confidence. And the prosecutor has the benefit of state’s witnesses, who are often designated by the trial judge as experts and who are trained in the art of testifying effectively in the trial setting.”

NARSOL has thus far been joined by the Arizona Attorneys for Criminal Justice and the Arizona Civil Liberties Union in supporting Stephen May before the 9th Circuit.


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