Wednesday, October 12, 2016

Trusting the Government Not To Prosecute the Innocent

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.


Joe said...

Scalia's comment is not realistic especially with the diverse amount of religious beliefs and examples one can imagine here. I personally think beliefs about abortion get wrongful special treatment in various cases, so as applied to her that might be true, but regardless, not a great answer.

Anyway, Chief Justice Roberts in at least one opinion said that we cannot trust the good judgment of a prosecutor here if the law is a violation of due process. See, e.g., the crush video case. So, yes, you are correct.

Hashim said...

Did you follow up with Scalia by asking whether the catholic-nurse hypo would be unconstitutional if it did happen? If his answer to that was no -- as I would hope, given the reasoning of his Smith opinion -- then his initial answer to you was fine: he'd essentially have been saying that the hypo would be an unfortunate result as a policy matter, but the policy consequence is particularly irrelevant as a legal matter since it was unlikely to occur. Emphasizing the alleged implausibility of the hypo would only be a bad response if he actually thought that the hypo would be unconstitutional if it did occur.

Kaelik said...

I think that's precisely the point Joe, that lots of people particular religious beliefs, but that this one specifically needed to be addressed to Scalia about one he agreed with for him to see the problem. But then Scalia dismissed the problem, because he's the accommodated majority/plurality that imposes the standards. Which doesn't solve the problem that minorities in the same situation get fucked by prosecutors (and Supreme Court Justices named Scalia) who don't choose not to prosecute.

Joe said...
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Greg said...

After reading this and thus becoming aware of this law, if I lived in Arizona I would absolutely change my behavior to avoid potentially being accused of child molestation. Assuming that my marriage is stable, I would have no concerns about caring for my own children. However, as a male, I would flatly refuse to care for anyone else's young children in a situation that could result in my needing to change their diaper. The concern is that if the parents and I were to have a falling out, the parents might use this law to attack me, and a willing prosecutor would have an easy time using this law and the parents' testimony as a bludgeon to extract undesirable concessions from me in order to avoid going to trial. I would also refuse to let my teenage son babysit any young children.

If I were a pediatrician in Arizona, I would leave the state. This is exactly the kind of thing that pediatricians are periodically accused of in civil suits even without a law that makes the pediatrician technically guilty.

This is one major reason that laws that outlaw normal behavior are bad. While it might be supposed that rational prosecutors will not prosecute the normal cases, rational actors will choose not to participate in those activities in order to avoid the risk of prosecution. This creates a chilling effect, especially when the behavior being outlawed is something the state should support. Helping others take care of their kids is the kind of community activity that should be encouraged.

Furthermore, these kinds of laws reinforce gender stereotypes. Because, as a male, I would be more likely to be prosecuted, I would refuse to care for others infants. Since the risk of prosecution is lower, females may be more willing to take the risk of caring for another person's child. This reinforces the stereotype that it's unusual and suspicious for a male to care for a child, even though it's a completely natural thing to do.

From a legal standpoint, sure, the state of Arizona can outlaw a basic action that is part of pediatric health care and young child day care. It's an incredibly stupid thing to do, but I don't see what would constitutionally prevent them from doing so as a policy decision.

Joe said...

The law in question provide defenses if the “sexual contact” was “in furtherance of
lawful medical practice” or in “administering a recognized and lawful form of treatment” during an emergency." I think state pediatricians are covered. And, as seen by some dentists who take advantage of their patients, merely because they are medical personnel doesn't mean such laws are unnecessary applied to them personally.

There is a reason to be particularly careful here to protect the well being of children though as applied to parents it can be tricky -- after all, e.g., parents bathe their children. And, there is a bias toward men, though women have been accused/convicted (from the coverage, apparently wrongly at times) in various instances. Inappropriate contact with children can be targeted and a too strict test will harm them unnecessarily. It just has to be done in a careful fashion.

Changing a diaper generally isn't "sexual" but if a man or woman did "sexually" touch a child, it very well should be criminalized. Molestation of infants occur there. Criminal acts will at times overlap with common legitimate ones. Finally, I would add that not every bit of sexual abuse or child molestation will be motivated by sexual motive. For instance, a spurned lover might punish someone by harming a child by molestation, without it being "sexual" in nature.

Greg said...

I view affirmative defenses as not part of the crime. If you use an affirmative defense, you're still guilty of the crime, but the state has agreed to let you off if you can convince a jury that you fall under one of their established exceptions. Self-defense is the prototypical example here.

In short, affirmative defenses are good enough to get off in an emergency situation where you didn't have a choice, but they're worthless if your objective is to avoid prosecution.

Nothing in my note should be construed to be a defense of child molestation. If a sexual purpose were an element of the crime, that would be sufficient even for prosecution of parents. I have no doubt that, unfortunately, there are parents, medical personnel, and day care providers who *should* be prosecuted. This is part of why these things get so tricky, as you noted.

Using affirmative defenses as an end-run around reasonable doubt is really quite distasteful. Now, if raising an affirmative defense created a requirement that the prosecution prove the opposite beyond a reasonable doubt, I might be more receptive to laws that structure their "except" clauses as defenses rather than elements of the crime. In this case, though, the "without a sexual purpose" is so clear and generally applicable that it should be an element. (However, I would argue that "sexual" is too specific, as another commenter noted.)

As an example, if they parents can find an expert witness who says that the particular exam performed wasn't necessary in this particular scenario, that alone is enough to even the scales on the "administering a recognized and lawful form of treatment" issue. The "in furtherance of lawful medical practice" exception might still apply, but the use of "lawful" in that sentence is tricky since it winds up being self-fulfilling. You shouldn't be guilty of child molestation because your pediatric practice is determined to be in violation of some administrative procedure law.