Arizona Supreme Court Upholds Law Criminalizing Ordinary Parental Tasks

State of Arizona v. Holle (2016)

by David S. Marshall

The Arizona Supreme Court has upheld a law that criminalizes any touching of a child’s genitals by an adult, even if the adult’s intent is not sexual.

In most jurisdictions (including Washington State), sex crimes generally require that sexual intent motivate the defendant’s actions. Under the Arizona law, however, this sexual intent requirement is missing. In Arizona, tasks as innocent and ordinary as changing a diaper or giving a child a bath can now be prosecuted and punished as child molestation.

While the court’s decision upholding this law raises obvious concerns for parents and other caretakers of children, it also triggers constitutional issues. Critics of the court’s decision argue that the Arizona legislature could not possibly have intended to criminalize all touching without regard to sexual intent. To criminalize a broad category of perfectly innocent parental behaviors is prohibited, the critics say, under the Due Process Clause of the Fourteenth Amendment.

The Due Process Clause also requires that a criminal law give a clear definition of the conduct prohibited. Critics of the Arizona statute argue that the law is unconstitutionally vague because it does not adequately define the conduct it criminalizes. Under the Constitution, a law is too vague if it does not give prosecutors sufficient guidance in exercising their discretion to file criminal charges. If sexual intent is not required to establish child molestation in Arizona, parents and caretakers face a huge risk of potentially broad and arbitrary enforcement of the law by the prosecutor’s office.

In its majority opinion, the Arizona Supreme Court dismissed these due process challenges to the law and said that innocent parents could assert “their fundamental, constitutional right to manage and care for their children” as a defense. However, prosecuting innocent parents under this law is not only lengthy, expensive, and unnecessary (for both the State and the parents accused), it still allows a parent’s ordinary conduct to be labeled criminal, even if it is ultimately excused under an exception to the law. Also, this constitutional defense is not available to child-care providers who are not parents.

Parents and child-care providers in Washington have more protection under our state’s child molestation statutes. While sexual intercourse with a minor (regardless of intent) is sufficient to convict under the child rape statutes (RCW 9A.44.073, RCW 9A.44.076, RCW 9A.44.079), child molestation in Washington requires “sexual contact.”

Sexual contact is “any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire.” RCW 9A.44.010(2). Washington parents and care-providers are therefore shielded from prosecution for performing ordinary, necessary child-care activities, such as changing diapers, giving baths, and dressing the children in their care.