A U.S. District Court judge in Phoenix has found unconstitutional an Arizona law defining child molestation, and he ordered that a man who already has spent a decade in custody be released.
In 2007, a Maricopa County jury found Stephen May guilty of five counts of moles
May was a former schoolteacher and swim instructor, and the charges came from allegations that he touched children inappropriately while giving them swim lessons. May denied there was any sexual intent on his part.
But the law was written in such a way that intent was not required as an element of guilt.
“Arizona is the only jurisdiction ever to uphold the constitutionality of putting the burden of disproving sexual intent on the accused.”
U.S. District Court Judge Neil Wake, in striking down Arizona’s child-molestation law
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 an intent to harm, violate or arouse.
When the Arizona Supreme Court in a 3-2 ruling upheld the law in another man’s case last September, the story went viral after the two dissenting justices noted that even parents diapering children could be charged with the crime.
May appealed his conviction in Arizona state court, arguing that his attorney had not provided effective counsel by not challenging the constitutionality of the law. When he lost, he took his case to federal court.
On March 28, U.S. District Court Judge Neil Wake declared the statute unconstitutional and ordered that May be released. He has been.
The Arizona Attorney General’s Office, which represented the state in federal court, declined to comment on the ruling, but court records show it has appealed the case to the 9th U.S. Circuit Court of Appeals.
Wake’s 39-page order throwing out the conviction was strongly worded.
“Petitioner Stephen May was convicted under Arizona’s child molestation law, which does not require the state to prove the defendant acted with sexual intent,” it began. “Rather, once the state proves the defendant knowingly touched the private parts of a child under the age of 15, to be acquitted the defendant must prove his lack of sexual intent by a preponderance of the evidence. Arizona stands alone among all United States jurisdictions in allocating the burden of proof this way. Arizona is the only jurisdiction ever to uphold the constitutionality of putting the burden of disproving sexual intent on the accused.”
Wake wrote that the law violated the due-process clause of the 14th Amendment by making the defendant prove that he or she did not have sexual intent, rather than making the state meet the burden of proof.
“Absent sexual intent, however, all the conduct within the sweep of the statute is benign, and much of it is constitutionally protected,” Wake wrote.
In other words, doctors examining children, parents or caregivers wiping children after they go to the bathroom, or tending them in other hygienic or instructional ways would make them liable.
And Wake noted that the jury that convicted May had struggled with the concept, twice telling the trial judge that it was at an impasse. The judge had already declared a mistrial when the jury suddenly informed the court that it had reached guilty verdicts.
Kimerer & Derrick Law Firm involvement in this case led to the ruling that the Arizona Law was unconstitutional.