by Sherry F. Colb
In my Verdict column for this week, I analyze an important feature of the Arizona Supreme Court case of Arizona v. Holle. In Holle, the defendant in a child molestation case bore the burden of proving, as an affirmative defense, that he lacked a sexual motive. The Arizona court upheld the allocation of the burden, which the defendant had to meet by a preponderance of the evidence. The column addresses the question whether it makes sense (and whether it may be unconstitutional) to compel a person who has touched a child's private parts to prove that he lacked a sexual motive, given that such actors as parents changing diapers and pediatricians examining patients would--under this regime--be presumptively considered child molesters, able only to defend themselves by offering an affirmative defense of "no sexual motive." Examining the relevant U.S. Supreme Court precedents, I suggest that this statutory scheme is valid under current law but that perhaps a better result would be if it were not, were we writing on a clean slate.
In this post, I want to address an argument that arose in the majority opinion in Holle but that I did not discuss in my column. The argument, made in response to the concern about parents and pediatricians, was that there were no actual cases of parents or pediatricians being prosecuted for child molestation due to the allocation of burdens in the statute. Furthermore, the argument went, prosecutors could be trusted to exercise their discretion to refrain from prosecuting non-sexually-abusing parents and pediatricians, notwithstanding the literal application of the statutory elements to the conduct of such (truly innocent) people. My question here is whether this is a good argument.
The question reminds me of a conversation that I had with the late Justice Scalia when I was clerking for Justice Blackmun, many years ago. At the time, I was asking Justice Scalia about Employment Div. v. Smith, the case holding that the Free Exercise Clause of the First Amendment requires no accommodation of religion but merely stands for the proposition that the government may not discriminate against religion. I posed a hypothetical case for Justice Scalia, in which an observant Catholic nurse works in a public hospital in which abortions are performed, and she is ordered to participate in an abortion procedure, despite her religious opposition, or else lose her job. I asked Justice Scalia to put aside any statutory claims the nurse might have to focus on the First Amendment. He paused for a moment and then said, "That wouldn't happen." In other words, Justice Scalia would certainly oppose a Catholic nurse being fired for refusing to participate in an abortion procedure, but the situation would not arise, so its theoretical possibility--given the holding in Smith--did not trouble him.
In one sense, Justice Scalia and the majority in Holle have a point. If a theoretically possible scenario simply will not arise, then we perhaps should not worry too much about the fact that the scenario is technically possible under existing law. On the other hand, the position troubles me for two reasons. The first is that we cannot be truly confident that a scenario will never arise, and if the law permits it to arise, then there would be little recourse in the event that it did. The Catholic nurse, then, could be fired, if the hospital were inclined to fire her for her religious objections, and a parent or pediatrician could be criminally prosecuted for child molestation simply for bathing/examining a child in a completely appropriate and non-sexual manner. There is something wrong with a law that plainly allows for an unjust firing or prosecution, because people are fallible and cannot always be trusted to exercise discretion wisely and leave the Catholic nurse/parents/pediatrician alone.
More fundamentally, though, even if we do trust hospitals and prosecutors to do the right thing, I would still object to the law endorsing an unjust outcome. In Holle, for example, even if no prosecutor ever brings a case, it should not be that a parent who changes his child's diapers is technically guilty of child molestation (but has an affirmative defense if he can prove by a preponderance of the evidence that he lacked a sexual motive), especially given the constitutional status of parental rights. The criminal law should, as a general matter, exclude from its coverage large swaths of behavior that is completely innocent and appropriate, if we are to maintain respect for the law. In sum, the fact that no parent was ever prosecuted for child molestation due to the allocation of burdens in Holle strikes me as a poor argument for upholding that allocation, and Justice Scalia's defense of Smith strikes me as a poor one as well. While occasional injustices are unavoidable, and even the criminal law may not be entirely precise in its coverage, the law should generally reflect justice and when it does not, it should be challenged or changed.