Diaper change as molestation? Experts doubt Arizona charges

Posted at 6:28 AM, Sep 23, 2016

PHOENIX (AP) — Statements from the Arizona Supreme Court equating diaper-changing to child molestation and the provocative social media headlines that followed have left parents nervous that one day they will need an attorney more than a nanny.

A recent court opinion on a Tucson man's appeal of child molestation and child sex abuse convictions criticized the law as too vague. Two dissenting justices wrote that the criminal statute says any kind of deliberate sexual contact is considered child molestation and does not require proof of sexual intent.

So, parents literally commit a felony every time they bathe a toddler or change a diaper, the dissenting justices said.

Law experts, however, say it's doubtful any prosecutor would go after a parent, baby-sitter or doctor for a standard child-caring task. But that hasn't stopped anxiety-breeding headlines that bath time could lead to jail time.

Here are key things to know about Arizona's child molestation law and the reaction to it:



For many parents, the law as written would criminalize the assistance they count on from baby-sitters and day care providers.

Arizona criminal statute defines child molestation, a felony, as an act by an individual who "intentionally or knowingly" engages in or causes someone to engage in any sexual contact with a child under 15. It does not mention whether the contact is sexually motivated.

Tabitha Schmaltz, an accountant and mother of four from the Phoenix suburb of Gilbert, sends her youngest child to day care and considers the staff an extension of herself. They are expected to be the parent, feeding and diapering her 1-year-old son.

"If I have to choose between my sitter abiding by the legislation and neglecting my child out of fear, or ignoring legislation and caring for my child in a way I know he's not being neglected, I would happily let my sitter violate this legislation," Schmaltz said Thursday.

Nikole Fletcher, a Phoenix mother pregnant with her second child, said that when she first put her 4½-year-old son in day care, she chose a facility that would assist with things like potty training.

"This law, the way that it's worded, is calling those day-to-day situations that you kind of chuckle about as a parent, they're calling them into a very serious light," Fletcher said.



The Arizona Supreme Court acknowledged that in crafting the law, the Legislature likely was not setting out to criminalize bathing or diaper-changing. But that did not stop an outcry across social media about parents or baby-sitters possibly facing arrest in an innocent situation.

That led Phoenix's top prosecutor, Maricopa County Attorney Bill Montgomery, to try to ease people's concerns in a statement earlier this week.

"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," Montgomery said.



Paul Bender, a longtime professor at Arizona State University's College of Law, said the law's wording should be clearer.

"I doubt very much whether there are going to be many unjust prosecutions under that interpretation, but it could happen," Bender said. "Because people are nervous about it, it's a problem."

He said the law is also problematic because it puts the burden of proving any sexual contact was innocent on the defendant.

"If you're going to accuse someone of a bad thing — of a criminal act — you should have to prove all the things that are necessary to make it a criminal act," Bender said.

Fletcher, the parent, said protecting children should always take precedence, but the law opens up the possibility of an erroneous judgment that could ruin someone's livelihood.

"Who is making the decision of who gets labeled or pulled in or decided against? We all think it should be sexual predators who are actually committing sexual molestation," Fletcher said.