Because I also agree with the court of appeals that the erroneous instruction was harmless beyond a reasonable doubt, I concur in the affirmance of Holle’s convictions and sentences.
The Arizona Supreme Court issued a stunning and horrifying decision, interpreting a state law to criminalize any contact between an adult and a child’s genitals.
The court held, in part, that prosecutors could be expected to exercise reasonable discretion in not “improperly prosecut[ing] persons who …
According to the court, the law’s sweep encompasses wholly innocent conduct, such as changing a diaper or bathing a baby.
As the stinging dissent notes, “parents and other caregivers” in the state are now considered to be “child molesters or sex abusers under Arizona law.” Those convicted under the statute may be imprisoned for five years.
At trial, Holle argued that the allegations against him were “blown out of proportion” and that he had always engaged in sexually normal behavior.
Holle’s two daughters testified that he never sexually assaulted them or any other children, and other relatives likewise testified about Holle’s sexual normalcy.
Accordingly, like the court of appeals, I would hold that the trial court erred in instructing the jury that lack of sexual motivation is an affirmative defense that Holle had the burden of proving.
On this point, I respectfully dissent from the majority’s contrary conclusion.
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Simply being accused of such a crime is sufficient to irreparably tarnish one’s reputation, and acquittal after a lengthy and expensive trial is more likely to reinforce the stigma than erase it.
And as noted at Mimesis Law‘s Fault Lines series, having to rely on prosecutors not to abuse technicalities in the law is a rather tenuous form of protection from government misconduct: It’s obvious the justices of the court aren’t a group with a lot of criminal defense experience.
If they were, they’d see that concerns about overreaching prosecutions are anything but hypothetical and unrealistic, but rather the sort of thing that defense lawyers battle daily.