Arizona Child Molestation Law Unconstitutional, Federal Judge Rules

In a somewhat scathing decision, a federal judge in Phoenix has ruled that Arizona's child molestation law - which requires defendants prove they had no sexual intent rather than the state proving that they did - is unconstitutional. In doing so, the judge ordered a man who has been in prison for nearly ten years be freed.

Stephen May, a former schoolteacher and swim instructor, was convicted in 2007 in Maricopa County of five counts of molestation and sentenced to 75 years in prison.

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The charges stemmed from allegations that May had touched children inappropriately while giving them swimming lessons.

While May denied there was any sexual intent on his part , the law didn't require prosecutors to prove that point. The law stated that May had to prove with a preponderance of evidence that he didn't have sexual intent.

Judge Neil Wake, in a 39-page ruling, said that the state had denied May due process and ordered him freed. Wake said Arizona's law, putting the burden of proof on the defendant rather than the state, is backward.

"The State deprived May of his constitutional right to due process of law and proof of guilt beyond a reasonable doubt," Wake ruled. "By crafting its child molestation law as it did, Arizona spared itself from proving sexual intent and instead burdened May with disproving it."

Wake wrote that Arizona is unique in this approach.

"Arizona stands alone among all United States jurisdictions in allocating the burden of proof this way," he wrote. "Arizona is the only jurisdiction ever to uphold the constitutionality of putting the burden of disproving sexual intent on the accused."

While May had appealed his conviction, he had not challenged the constitutionality of the law until his appeal to federal court.

Wake said that while the law criminalizes the "sexual fondling of children," it does so in a way that it also criminalizes the "sitting a child down in a chair, diapering and bathing an infant, medical treatment, and religious circumcision alike."

The judge also took issue with the state's assertion that it knows who to prosecute.

"The intuition that the State will only charge people who cannot disprove sexual intent may leave some comfortable that the right people are being convicted," he wrote. "But it is the very role of proof beyond a reasonable doubt to sort out who should be convicted from
who should not."

He questions the state's belief that it "picks the right people to prosecute" does not free itself from "proving an essential element of guilt."

To consider that since the prosecution says they have "a pretty good idea of who is guilty" and that it's up to the defendant to disprove it would be to "repudiate at its core the constitutional mandate that the state prove guilt beyond a reasonable doubt."

The state has filed court papers indicating they plan to appeal the decision to the Ninth Circuit Court of Appeals."

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