Baby bathing
© Net Parents Org
Phoenix - A controversial ruling handed down last week reaffirmed any touching of a child's genitals is a crime. Such acts as changing a baby's diaper or bathing them could be considered the crime of sexual abuse even though there is no sexual element involved.

The decision was handed down in the case of Arizona v. Holle. The majority of the Supreme Court of Arizona ruled under the state's law, touching the genitals of a minor constitutes the crime of sexual abuse. Whether or not this touching is done for a sexual purpose is irrelevant.

Jerry Charles Holle's step-granddaughter, who was 11 at the time, told someone Holle had inappropriately touched and kissed her. Holle was charged with and later convicted by a jury of sexual abuse of a minor under the age of 15 years. He was sentenced to 10 years in prison to be followed with probation for five years.

On appeal, Holle argued the prosecution should have been required to prove beyond a reasonable doubt his actions had a sexual motivation. Leaving it to him to disprove a sexual purpose violated his due process rights under the Constitution.

But once the prosecution proved he had knowing and intentionally touched the girl's genitals, Arizona law provides Holle could raise the defence this touching was not done for a sexual purpose. The onus was on him to raise the defence to show the act, although intentional, had no sexual component.

The majority of the justices on the Supreme Court applied a literal reading to the section. As long as touching the genitals of a minor is done "intentionally" and "knowingly," the crime is made out. While they agreed the section was overbroad, they ruled it was no different than other sections of the state's penal laws. Nor was it different than many other laws in other states.

The five justices sitting on the court all agreed anyone who intentionally touches the genitals of a minor while changing their diapers or giving them a bath would fall under the child abuse of minors law. So would a doctor who was examining the genitals of a minor. And all the justices said it was unlikely adults who were doing these innocent things would be charged with sexual abuse.

But the two justices who dissented showed more concern about the possibility of the law being abused by police and prosecutors. One justice pointed out an adult who intentionally and knowingly touches the genitals of a baby while bathing the infant knows they are committing a felony regardless of the fact they will not be charged. The minority found the law to be vague and unconstitutional. People are entitled to know exactly what actions constitute crimes in advance. Relying on prosecutors not to prosecute is not sufficient.

The Independent Journal Review interviewed some parents and caregivers about the decision. One person noted it will be especially difficult for those who run daycare centres or look after other peoples' children. Those interviewed were not happy about relying on the authorities not to prosecute for innocent acts such as bathing or changing diapers.