Worse still would be the necessity to defend the charges by proving there was no “sexual” intention to the physical contact. “Such a defense,” the judge wrote, “as the majority notes, does not mean that a crime has not occurred, but instead that the miscreant may avoid ‘culpability’ by persuading the factfinder that the ‘criminal conduct’ should be excused.”
And such absurd notions of presumed guilt aren’t all that rare. Indeed, when it comes to the child‐welfare system, parents are held to the same unfair standard.
“The apparent suggestion that parents can rely on the discretion of police, child protection authorities and prosecutors not to file charges regarding sexual abuse related to ordinary parenting activity is belied by the overreaching that regularly occurs when broad discretion to decide what constitutes abuse or neglect is given to authorities involved in child protection investigations,” explained Family Defense Center founder Diane Redleaf.
While prosecutors insist that parents shouldn’t fear overly broad interpretations of the law or overzealous prosecutions, many of the incentives for prosecutors gravitate the other way. No prosecutor wants to be seen as “soft on child‐sex crime.”
Plus, “mandatory minimums” and the government’s immense reliance on plea bargaining have created a legal regime in which prosecutors have the power to threaten extremely harsh punishments if defendants insist on going to trial. By making “sexual intent” an affirmative defense, which can only be raised at trial, Arizona lawmakers are forcing defendant parents to take a huge risk just to defend themselves.
Even if there’s little risk of prosecutorial misconduct, there’s simply no reason to make basic parenting criminal on its face. Anyway, it’s not just the prosecutor who has the potential to misuse this law.
Redleaf is especially worried about the Arizona situation because she’s seen so many cases of moms and dads accused of child abuse, and especially sexual molestation, when there’s already a conflict between the two adults.
“Unfortunately,” she argues, “the parents who will be most vulnerable to these charges will be the ones who are already least able to respond effectively to criminal charges. Sexual‐abuse charges are notoriously difficult to refute, even when the alleged perpetrator is innocent of wrongdoing.”
And there are already too many examples of adults using children and accusations of abuse and molestation as their weapon of choice against each other. The most recent example was the notorious celebrity decoupling of Brad Pitt and Angelina Jolie, who accused her husband of child abuse as the first salvo of their divorce proceedings.
Legislators and prosecutors are within their rights to be tough as nails on child‐sex abuse, but in their zeal to protect kids, keeping innocent parents out of the fray doesn’t seem like too much to ask.