Most Americans can agree that having laws against child sex abuse is generally a good thing. But just as there can be too much of any good thing, some laws – no matter how well-intentioned – can go a few steps too far.
For example, a law that was recently passed in the state of Arizona…
As reported at Slate:
“The Arizona Supreme Court issued a stunning and horrifying decision on Tuesday, interpreting a state law to criminalize any contact between an adult and a child’s genitals.”
At first glance, it might appear to be one of those “good laws.” After all, no adult should have contact with a child’s genitals, right? But Slate’s Mark Joseph Stern points out one glaring problem:
“According to the court, the law’s sweep encompasses wholly innocent conduct, such as changing a diaper or bathing a baby. As the stinging dissent notes, ‘parents and other caregivers’ in the state are now considered to be ‘child molesters or sex abusers under Arizona law.’
Those convicted under the statute may be imprisoned for five years.”
Many other states have similar laws, but those laws stipulate that the intent of the contact must be sexual in nature. The Arizona law has no such stipulation – the state’s Supreme Court claimed that defendants could assert “lack of sexual motivation” at trial.”
And while some may be content to “trust the prosecutors” to refrain from bringing charges against parents who are simply engaged in normal parenting activities, a number of parents voiced concern. Independent Journal Review spoke to a few who weren’t so trusting:
Shannon noted that the law would put the risk of prosecution on daycares as well:
“I operated a home daycare for a while and had to change diapers and pottytrain as part of my job. If I didn’t, kids would have serious diaper rash, and possibly infection.
So essentially, with this law I’d either be guilty of possible sexual misconduct or gross negligence, either of which would be treated as child abuse.
I strongly believe children should be protected, but why are we not seeing stronger penalties for existing laws rather than new laws that would penalize responsible people who are just doing what is necessary when caring for infants and toddlers?”
Stevie raised another good question – what about doctors?
“This is insane. Not only is it outrageous when it comes to normal parenting responsibilities for everyone with babies and toddlers, but what about parents of kids with medical issues?
My seven-year-old can’t administer her own suppositories or enemas. Am I guilty of a crime for giving her medicine prescribed by a doctor?
And what about doctors? How does this law change exam and treatment protocols? Are doctors exempt from this ridiculous state interference in normal childcare? Or will they, like Arizona parents, now be banned from meeting the basic needs of kids who cannot yet meet them on their own?
What’s the alternative? How are diapers changed and baths given? How do babies get clothes on? These people have forgotten how to think. It’s pathetic.”
And Tia showed just how ridiculous the law could be in its application:
“Sooo kids go into foster care while their parents try to prove they were just innocently changing a diaper and the foster parents get fired for changing a diaper and the child is moved to another home that won’t work out because they will have to change a diaper.
It never ends. I can not wrap my head around the stupidity of this law. If they keep it this way, Arizona will empty out quick.”
Two justices dissented, writing:
“No one thinks that the legislature really intended to criminalize every knowing or intentional act of touching a child in the prohibited areas.
Reading the statutes as doing so creates a constitutional vagueness problem, as it would mean both that people do not have fair notice of what is actually prohibited.”
The Constitution, as part of the Due Process clause of the 14th Amendment, does not allow for the passage of laws that will be defined later – people must be aware what the law prohibits so that they can be held accountable when they choose to break it.
Stern also notes that such a change completely reverses roles inside the courtroom, forcing the defendant to prove his innocence rather than the state to prove guilt, and effectively erasing the “innocent until proven guilty” principle upon which the American justice system was built.