Federal judge sets AZ man free, calls molestation law unconstitutional

Regional News

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Calling the statute a “grievous threat to due process of law,” a federal judge has released a convicted child molester after ruling the law imposes unconstitutional burdens on defendants to prove their innocence.

In an extensive analysis of the issue, Judge Neil Wake said someone can be convicted of molesting for the “intentional and knowing” touching of the private parts of a child. But the law says a defendant can seek to escape conviction by proving that touching “was not motivated by a sexual interest.”

But Wake said that turns the law on its head.

He said it is the legal obligation of prosecutors to prove all elements of a crime. And that, said Wake, means it’s up to the prosecutor to prove that the person touched the child with a sexual intent, not for the person, already arrested, to prove otherwise.

Wake said the Arizona law instead criminalizes “wide swaths of conduct with no element of the crime to differentiate between culpable, innocent, and constitutionally protected conduct.”

The ruling is at odds with what the Arizona Supreme Court decided last year when it rejected a similar challenge to the law. In that case, which the U.S. Supreme Court on Monday refused to review, the Arizona justices said prosecutors are “unlikely to charge parents, physicians, and the like” when the evidence shows that the touching was not done with a sexual intent.