There were over a half dozen published Ninth Circuit opinions today, which comprised nearly 200 pages of single-spaced text. So a lot to read.
I nonetheless thought I'd only talk about this one, since it seemed to me the most doctrinally interesting.
It's a thorny area of the law involving affirmative defenses to criminal statutes. The normal rule, as you know, is that the state has the burden of proving the elements of a crime beyond a reasonable doubt. At the same time, however, the state can make affirmative defenses, and as to those, (1) the defendant has the burden of proof (which is turn often practically compels him to take the stand), and (2) is required to demonstrate those by the preponderance of the evidence (rather than the "beyond a reasonable doubt" standard). So it's a very big deal whether something's an element or an affirmative defense.
And what matters, the Supreme Court has held, is substance, not form. A state could not, for example, constitutionally say "It is a crime to be a nurse in a hospital when a patient dies, but it's an affirmative defense if the nurse shows they didn't cause the death." No good. You can see why.
Which brings us to today's case.
Arizona says that it counts as molestation if you deliberately touch a child's genitals. But it's an affirmative defense if you didn't touch them for sexual purposes. You see where the resulting burdens are. Arizona's statute in this regard is different than every other state, which has sexual motivation as an element of the offense. Is Arizona's statute constitutional, and is the defendant here (who was convicted based upon the Arizona statutory regime) entitled to federal habeas relief?
There's a ton to Judge Bybee's opinion. It's really quite good, and explains a very complicated doctrinal area in a clear and understandable fashion. He ultimately holds (alongside the rest of the panel) that the Arizona regime is unconstitutional, since it in substance turns an essential element of the offense (sexual motivation) into an affirmative defense.
What does a ton of work for Judge Bybee -- and understandably so -- is his claim that, as written, the Arizona statute would criminalize a massive volume of entirely innocent conduct if you took away the affirmative defense. When a parent bathes their child, after all, there's sometimes the occasional touching of the child's genitals and/or anus. Is that really molestation? Arizona says yes, albeit with an affirmative defense if the parent can prove that the touching wasn't sexually motivated.
That makes sense to me. A powerful argument. And the fact that prosecutors wouldn't charge parents for bathing their kids doesn't save the statute -- that relies on noblesse oblige to salvage an unconstitutional statute, and we're not down for that
Solidly argued. So you can see full well why the panel comes out the way it does.
So the opinion is worth mentioning (as well as reading) for that reason alone.
But I wanted to add one other thought as well.
Even more than the "bathing" argument, Judge Bybee's opinion relies a ton on the argument that the Arizona statute would criminalize anyone who changed the diaper of a baby. Judge Bybee articulates this argument over a dozen times, saying that (1) if you change a baby's diaper, you're automatically guilty of child molestation in Arizona (absent proof of an affirmative defense) [e.g., "Arizona’s child molestation scheme . . . . criminalizes every knowing or intentional touching of a child’s private parts, no matter the reason. Everyone who knowingly changes a diaper could be convicted of child molestation."); and (2) if you instead don't change the baby's diaper, that's a crime too. ["Any parent or caretaker who fails to change a child’s diapers may be charged with criminal neglect.]
So you're damned if you do, and damned if you don't. Or, in Judge Bybee's words, "Arizona can thus punish both the changing and the nonchanging of a diaper. No matter what choices parents or caretakers make, they have violated Arizona law." P.S. - Oh, and if you see someone else change a diaper, you're guilty if you don't report that too. ("Given the mandatory reporting requirement, a parent who observes a spouse changing a diaper has an obligation to report the violation, under penalty of law.")
Okay. Again, a powerful argument.
My only comment, though, is about the underlying assumption. Does changing a diaper really involve the elements of child molestation under Arizona law?
I get it. If, during the diaper change, you touch the child's genitals, that satisfies the elements. Since the statute says that you're (facially) guilty if there's "any direct or indirect touching . . . of any part of the genitals, anus or female breast by any part of the body or by any object."
But, as a factual matter, how often does that really happen when you change a diaper?
I've got four kids. I've changed my share of diapers. For me the number of times that I touched their genitals while doing so (while holding a wet wipe or otherwise) was very small. If the kid was actively peeing on me during the diaper change, well, yeah, sure, sometimes I had to move to block the stream, and that could involve touching the genitals. But otherwise, I suspect that the number of times one actually manipulates the child's genitals during a diaper change seems relatively small.
Now, if we're talking about a diaper that's full of feces, that often involves a different story. That's a situation in which you may well have to touch (albeit with your covered hand, obviously) the child's anus or genitals. Gotta get that area clean, for sure. Yep, in that situation, you might well be facially guilty of child molestation under Arizona's statute.
But it nonetheless seems overly broad to repeatedly say, as the opinion currently does, that anyone who changes a diaper is facially guilty. (E.g., "Everyone who knowingly changes a diaper could be convicted of child molestation."). If we're talking about poo diapers, okay, yep, I think that's generally correct. At least as I recall the whole diaper-changing experience.
But for those half (or more?) of diaper changes that merely involve pee, I don't think that's usually a facial crime even under the Arizona statute. You've got a valid defense even beyond the affirmative one, since you probably didn't, in fact, usually touch the genitals or anus (or "female breast").
So I think today's opinion correct, but only with the caveat that whenever we're talking about changing a diaper, we're talking about diapers full of poo. Particularly that yucky, expansive, totally-all-over-the-place (my-God-what-have-you-done-here) baby poo.
With that graphic but important caveat, sure, I fully concur.
