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MCAO News Releases

Posted on: September 20, 2016

Public Misled on Claims Diaper Changing is Worthy of Felony Prosecution in Arizona

PHOENIX— On September 13, 2016, the Arizona Supreme Court voted 3-2 to leave Arizona law unchanged regarding the charges of sexual abuse and molestation of a child. Since at least 1988, state law has allowed those accused of specific sexual offenses, Sexual Abuse or Child Molestation, to raise lack of a sexual motivation as a defense to charges. Furthermore, the contact under consideration for a charge is characterized as Sexual Contact. Prosecutors have always required evidence of sexual motivation in these types of cases before pursuing a prosecution. The Court’s decision changes nothing about current law, the process for review, or the charging standard.

However, language used in the Dissenting Opinion has led to public misunderstanding on how these cases are charged. The Court’s decision has been misread to conclude that because sexual motivation is not an element of the offense, parents can be criminally charged while properly caring for their child. This is simply not true. The very titles of the statutes involved – Sexual Contact, Sexual Abuse, Child Molestation - are indicative of the sexual nature of the crimes and are not mechanically applied to all contact a parent or caregiver would have with a child. Fulfilling parental responsibilities by tending to a child’s hygiene or medical needs will not run afoul of the law. Only when the touching is of a sexual nature do prosecutors even consider filing charges.

“It is important for our community to understand no parent has ever been charged with a crime for simply changing a diaper, bathing a child, or tending to their medical needs and this decision does not change that,” said County Attorney Bill Montgomery. “It is incredibly insulting to believe any prosecutor reviewing a case for charging would not be able to tell the difference between an adult taking proper care of a child and the molestation of a child victim,” he added.

Anytime an individual is accused of either sexual abuse or molestation of a child there are several investigative steps taken before a suspect is criminally charged. This includes an initial investigation by law enforcement and a review of the investigation by prosecutors, followed by a review of the evidence by a judge or grand jury. It is not reasonable to believe, as some have claimed, that the simple act of changing a diaper would leave an adult open to prosecution on sexual abuse or molestation charges.

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