Could changing a diaper land Arizona parents in jail?

Language in state child molestation laws scrutinized and leaving some to wonder: could law prohibit parents from changing their child's diaper.

PHOENIX - As if parents with small children didn't have enough to worry about in Arizona, now comes an article from Slate.com that says if you have kids in diapers, you could be on shaky legal ground when it comes to that next diaper change.

The Slate author, Mark Joseph Stern, in his read of the Arizona Supreme Court briefs surrounding a recent appeal out of Pima County, found that language in Arizona child molestation and sexual abuse legislation "do not require the 'touching' to be sexual in nature."  And by this interpretation, the court found, "(Arizona) law criminalized the completely innocent touching of a child," Stern wrote.

READ: The Arizona Supreme Court's decision and explanation

Outlawing any type of touching of a child's genitals without further context, Stern points out would "prohibit parents from changing their child's diaper."

Maricopa County Attorney Bill Montgomery was quick to point out that dissenters were disregarding a key part of the legislation -- the title.

"If you ignore  the phrase 'sexual contact,' if you ignore the title of 13-1410, molestation, if you ignore the title for 13-1404 as sexual abuse," Montgomery implored, "that's three levels of ignorance prosecutors don't operate with."

Montgomery says he and his colleagues give cases of sexual abuse and misconduct the highest degree of scrutiny.

"If a defendant is going to bring that up in trial, and we don't have any evidence to show that there was sexual motivation," Montgomery said, "then juries are not going to convict, grand jurors are not going to indict."

But two justices cited constitutional vagueness as part of the dissent in the court's ruling. It's a lack of clarity that legal scholars like Arizona State University professor Paul Bender say can lead to more confusion.

"And there also could be a case where it's not clear whether there was a sexual intent or not," Bender said.  "And under this decision, when it's not clear, the defendant would be guilty, and that's wrong."   

Copyright 2016 KPNX


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