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Arizona law about parents, changing diapers and child abuse causing online stir

(AP Photo/Mic Smith)
LISTEN: Monica Lindstrom- KTAR Legal Analyst

PHOENIX — An Arizona law concerning parents, changing diapers and possible felony sexual abuse charges has created a lot of confusion online in recent days.

Several major sites, including Slate and Reason, have picked up the story. The sites claim that Arizona parents could be charged with sexual abuse or molestation of a child simply because they changed a diaper or helped a child get dressed.

And according to KTAR legal analyst Monica Lindstrom, that’s true.

“This is what it comes down to: If you think of just the words, if I mean to touch my child and I touch their genitals, I’m guilty,” she said Tuesday. “There’s no sexual motivation requirement, there’s no sexual intent requirement.”

But Maricopa County officials said it’s not that clear-cut and denied that Arizona parents are at risk of losing their kids. Maricopa County Attorney Bill Montgomery said in a press release that the decision to bring charges comes down to the prosecutor, who, when using common sense, can tell the difference between abuse and parenting.

“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,” he said.

Montgomery said that no parent has ever been charged under the law, which dates back to at least 1988.

“It is important for our community to understand no parent has ever been charged with a crime for simply changing a diaper, bathing a child or tending to their medical needs and this decision does not change that,” he said.

But the fact that a parent could theoretically be charged is what is causing concern.

The online confusion stems from a Sept. 13 ruling, in which the Arizona Supreme Court voted 3-2 not to change the law. The two dissenting judges said they hoped to add a motivational clause to remove any ambiguity from further cases.

They also said that the law places the burden on the defendant — instead of the state — to prove his or her innocence while the threat of losing a child looms overhead.

“You might be able to prove pretty quickly that it’s ridiculous and it shouldn’t go forward, but in the meantime, the Department of Child Safety has already been contacted, an investigation has likely already been started and, chances are, your child has already been taken away from you,” Lindstrom said.

Lindstrom is also concerned the law could be wielded as a tool by jilted divorcees to get revenge.

“Those wheels don’t turn fast once it’s happened,” she said of the possible outcomes of an accusation. “Even though this is totally bogus and outlandish, the fact is that, if the accusation is made, that completely innocent parent could still have to deal with these ramifications.”

There is also the possibility of a prosecutor using the law to get a person to agree to a plea deal on unrelated charges.

“This could be used in a bad way to get people to enter into plea agreements for other completely unrelated charges and that’s just sad,” Lindstrom said.

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