Changing a diaper is now child molestation in Arizona.

[Simon_Jester]

You just quoted a chunk of an article talking about an Arizona State Supreme Court decision, did you mean to quote something from Martin v. Ohio?

What aren't you getting? SCOTUS has ruled that the burden of proof of intent can be shifted to the defendant, and laws can just criminalize actions ("elements of the crime").

This law does that exactly.

The court has ruled this in the context of murder (note that Patterson v. New York might be the more relevant case to cite). Murder is an act that is nearly always wrong. When Ohio passes a murder law that affirms a 'pacifist' stance (killing is always wrong, and you specifically need to prove lack of criminal intent), this places a burden on the defendant, but one out of line with the severity of the offense and the unusual nature of self-defense killings.

Killing people in self defense is not a routine action that most of the population engages in at some time in their lives, after all. Based on experience, it would be most illogical for the court to assume by default that anyone who says they killed someone in self defense is telling the truth until proven to be lying.

[By the way, what is your position on 'castle' and 'stand your ground' laws that tend to give the defendant more leeway in claiming self defense? I seem to remember you opposing them, but I could be wrong.]
____________________________

The constitutional problem raised by the Arizona law is not specifically that it involves an affirmative defense. Affirmative defenses that have to be proved by the defendant are not in themselves a problem.

The problem is that the Arizona law criminalizes a routine activity, one that is carried out without a shred of criminal intent. And indeed, an activity that is carried out without criminal intent far more often than it is carried out with that intent. For every child molester in America, there are dozens if not hundreds of parents changing a diaper.

Therefore, in this context, as opposed to the specific context of murder, making "the defendant acted with no criminal intent" an affirmative defense goes against the preponderance of the statistical evidence. Most killings are not self defense; most instances in which an adult touches a child's privates are diaper-changing or other such activities routine to child care.

That is why the law is out of line.

There is an obvious constitutional difference between making something a crime that is, 99% of the time, a necessary and innocent part of raising children... and making something a crime that is, 90% or more of the time, a deliberate wrongful act. In the former case, requiring the defendant to justify themselves in court is an injustice. In the latter case, it is not.

[Raw Shark]

Who says you have to touch a baby after it takes a shit? All you need is to carry it around in a bucket all the time, and hose it down with the sink sprayer. Plus, no more diapers in the landfills. BOOM. I'm Winston Wolfe, and I solve problems.

[General Zod]

On the other hand, this ruling does have one interesting side effect. Doctors that perform circumcisions in hospitals are now officially child molesters.

[Elheru Aran]

Who says you have to touch a baby after it takes a shit? All you need is to carry it around in a bucket all the time, and hose it down with the sink sprayer. Plus, no more diapers in the landfills. BOOM. I'm Winston Wolfe, and I solve problems.

You still have to put it in the bucket somehow, don't you?

Plus diapers do perform a fairly vital function of *containing* stinks. Open bucket won't do the same. And let me tell you (with a 3-and-a-half and one on the way) holeeeee FUCK do they STINK sometimes.

[Dominus Atheos]

You just quoted a chunk of an article talking about an Arizona State Supreme Court decision, did you mean to quote something from Martin v. Ohio?

No, I quoted a writeup of Martin, then changed the words "self-defense" to "lack of sexual motivation".

What aren't you getting? SCOTUS has ruled that the burden of proof of intent can be shifted to the defendant, and laws can just criminalize actions ("elements of the crime").

This law does that exactly.

The court has ruled this in the context of murder (note that Patterson v. New York might be the more relevant case to cite). Murder is an act that is nearly always wrong. When Ohio passes a murder law that affirms a 'pacifist' stance (killing is always wrong, and you specifically need to prove lack of criminal intent), this places a burden on the defendant, but one out of line with the severity of the offense and the unusual nature of self-defense killings.

Killing people in self defense is not a routine action that most of the population engages in at some time in their lives, after all. Based on experience, it would be most illogical for the court to assume by default that anyone who says they killed someone in self defense is telling the truth until proven to be lying.

[By the way, what is your position on 'castle' and 'stand your ground' laws that tend to give the defendant more leeway in claiming self defense? I seem to remember you opposing them, but I could be wrong.]
____________________________

The constitutional problem raised by the Arizona law is not specifically that it involves an affirmative defense. Affirmative defenses that have to be proved by the defendant are not in themselves a problem.

The problem is that the Arizona law criminalizes a routine activity, one that is carried out without a shred of criminal intent. And indeed, an activity that is carried out without criminal intent far more often than it is carried out with that intent. For every child molester in America, there are dozens if not hundreds of parents changing a diaper.

Therefore, in this context, as opposed to the specific context of murder, making "the defendant acted with no criminal intent" an affirmative defense goes against the preponderance of the statistical evidence. Most killings are not self defense; most instances in which an adult touches a child's privates are diaper-changing or other such activities routine to child care.

That is why the law is out of line.

There is an obvious constitutional difference between making something a crime that is, 99% of the time, a necessary and innocent part of raising children... and making something a crime that is, 90% or more of the time, a deliberate wrongful act. In the former case, requiring the defendant to justify themselves in court is an injustice. In the latter case, it is not.

[/quote]

I'm not responding to your evidence free laymen's opinion, quote a legal source if you want to be in a legal debate.

[Simon_Jester]

DA, do you have a relevant law degree? On what grounds are you declaring your interpretation of Patterson and Martin so superior to mine that you don't even need to respond to what I say?

It seems very... interesting... that you're only willing to talk to lawyers about this issue, on a forum which has very few of them.

And I can only assume my original interpretation was correct, because you did not see fit to elaborate- you just repeated your original, rather vague, argument with a little snippet of cut-and-paste.

Your argument appears to reduce to:

1) The Supreme Court allows states to make self-defense an affirmative defense for murder.
2) Therefore, the Court has also ruled that any state can declare any act criminal, and make "but I had no intent to cause harm" or "this act was necessary" an affirmative defense, that the defendant must prove in court, regardless of the precise nature of the action.

Do I understand you correctly?

[Simon_Jester]

EDIT WINDOW CLOSED:

DA, I will also note that you did not respond to my question about your perspective on "stand your ground" and "castle doctrine" laws that would act to broaden the scope of self-defense claims in murder cases.

Do you consider it a positive or negative thing that the state is allowed to call self-defense an affirmative defense, and require the defendant to prove the defense using a preponderance of the evidence? If it is a negative thing in your eyes, then I imagine you would call it a positive development if the barriers to a successful self-defense claim are lowered.

[Alyrium Denryle]

DA you will not pass on arguments on the grounds you just did. You are making a legal argument yourself, there are no double standards in my NP forum.


But if you want a legal source, I will give you one.

https://www.law.cornell.edu/wex/affirmative_defense

http://www.rotlaw.com/legal-library/wha ... e-defense/

An affirmative defense is a long-standing principle of common law. In criminal cases, the prosecution has to prove the elements of the crime. In other words, they must prove the defendant performed the prohibited act in question. In an affirmative defense, the defendant stipulates to performing the act. But, they bring in evidence to show that for a variety of reasons, they should not be held criminally liable. Self-defense is one stance and it is one that has been an affirmative defense for a long time. Stand Your Ground is an example of what happens when the prosecution must prove someone is NOT acting in self-defense. We all know where that leads. Someone pleading insanity has to show they are in fact criminally insane etc. Affirmative defenses are relatively rare exceptions to the typical circumstances of murder or other such crimes. It makes logical and functional sense to, when the defendant stipulates to the criminal act, to have them show evidence indicating that they should not be held liable. Under conditions where such defenses apply, this is not difficult for the defendant to do.

In this case, bathing a child is MUCH more common than molesting a child. When someone stipulates to the act of touching a child's ass, it makes no sense for them to have to prove that they were wiping the child's as.

[Flagg]

Wait, he switched out wording of a court ruling? Fuck you, DA. The law in Arizona is odious enough without you trying to prove it's worse by lying about it.

[Dominus Atheos]

DA you will not pass on arguments on the grounds you just did. You are making a legal argument yourself, there are no double standards in my NP forum.

Yes, and I quoted a legal source, Simon_jester's only source was his own ass.

But if you want a legal source, I will give you one.

https://www.law.cornell.edu/wex/affirmative_defense

http://www.rotlaw.com/legal-library/wha ... e-defense/

An affirmative defense is a long-standing principle of common law. In criminal cases, the prosecution has to prove the elements of the crime. In other words, they must prove the defendant performed the prohibited act in question. In an affirmative defense, the defendant stipulates to performing the act. But, they bring in evidence to show that for a variety of reasons, they should not be held criminally liable. Self-defense is one stance and it is one that has been an affirmative defense for a long time. Stand Your Ground is an example of what happens when the prosecution must prove someone is NOT acting in self-defense. We all know where that leads. Someone pleading insanity has to show they are in fact criminally insane etc. Affirmative defenses are relatively rare exceptions to the typical circumstances of murder or other such crimes. It makes logical and functional sense to, when the defendant stipulates to the criminal act, to have them show evidence indicating that they should not be held liable. Under conditions where such defenses apply, this is not difficult for the defendant to do.

In this case, bathing a child is MUCH more common than molesting a child. When someone stipulates to the act of touching a child's ass, it makes no sense for them to have to prove that they were wiping the child's as.

I agree with you, however the Supreme Court does not. I quoted a writeup of Martin v Ohio which was about self defense in a murder case, here is the direct quote from SCOTUS:

It is not a violation of the Due Process Clause for Ohio to place the burden of proving self-defense on a defendant charged with committing aggravated murder. There is no merit to petitioner's argument that it is necessary under Ohio law for the State to disprove self-defense since both unlawfulness and criminal intent are elements of serious offenses, while self-defense renders lawful that which would otherwise be a crime and negates a showing of criminal intent. The Court will follow Ohio courts that have rejected this argument, holding that unlawfulness in such cases is the conduct satisfying the elements of aggravated murder, and that the necessary mental state for this crime is the specific purpose to take life pursuant to prior calculation and design. Furthermore, the mere fact that all but two States have abandoned the common-law rule that affirmative defenses, including self-defense, must be proved by the defendant does not render that rule unconstitutional. The Court will follow Patterson and other of its decisions which allowed States to fashion their own affirmative-defense, burden-of-proof rules. Pp. 235-236.

And here is is Patterson v. New York, 432 U.S. 197 (1977), which was about a man shooting his wife's lover after witnessing them both In flagrante delicto (latin is fun) and is what Martin is referencing:

New York law requiring that the defendant in a prosecution for second-degree murder prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter held not to violate the Due Process Clause of the Fourteenth Amendment. Mullaney v. Wilbur, 421 U. S. 684, distinguished. Pp. 432 U. S. 201-216.

(a) Such affirmative defense does not serve to negative any facts of the crime which the State must prove in order to convict, but constitutes a separate issue on which the defendant is required to carry the burden of persuasion. Pp. 432 U. S. 206-207.

(b) The Due Process Clause does not put New York to the choice of abandoning such an affirmative defense or undertaking to disprove its existence in order to convict for a crime which is otherwise within the State's constitutional powers to sanction by substantial punishment. If the State chooses to recognize a factor that mitigates the degree of criminality or punishment, it may assure itself that the fact has been established with reasonable certainty, and to recognize at all a mitigating circumstance does not require the State to prove beyond a reasonable doubt its nonexistence in each case in which the fact is put in issue if, in its judgment, this would be too cumbersome, expensive, and inaccurate. Pp. 432 U. S. 207-209.

Are those two opinions full of holes you could drive a truck through? Absolutely. Is it current precedent? Unfortunately yes.

So although I disagree strongly with these opinions,they are SCOTUS rulings that haven't been overturned so are the current law.

[Dominus Atheos]

Wait, he switched out wording of a court ruling? Fuck you, DA. The law in Arizona is odious enough without you trying to prove it's worse by lying about it.

The fuck I lied about anyhing. In my first post, I quoted a summery of Martin v Ohio :

After being assaulted by her husband, the defendant killed him as he approached her. The trial court instructed the jury that it must find that the prosecution established, beyond a reasonable doubt, the following elements of aggravated murder in order to return a guilty verdict: with purpose and with prior calculation and design, causing the death of another. The jury was also instructed that although it could consider the defendant’s evidence of self-defense in determining the defendant’s guilt, she bore the burden of persuasion on proving to the jury, by a preponderance of the evidence, the defense of self-defense. The jury returned a verdict of guilty, which two state appellate courts affirmed.

Affirming the conviction, the Supreme Court ruled that since the jury could consider self-defense even if the defendant did not meet her burden of persuasion, and that proving self-defense did not disprove any of the elements of the offense, allocating the burden of persuasion to the defendant did not violate constitutional standards of due process.

Then later when someone asked how that applied to the current case, I quoted the article

Moreover, the court held that the laws posed no due process problem, because those prosecuted under the statute could still assert “lack of sexual motivation” as an “affirmative defense” at trial—one the defendant himself must prove to the jury “by a preponderance of the evidence.”

Then I requoted my first post, but changed the words "self-defense" to "(lack of sexual motivation)":

Affirming the conviction, the Supreme Court ruled that since the jury could consider (lack of sexual motivation) even if the defendant did not meet her burden of persuasion, and that proving (lack of sexual motivation) did not disprove any of the elements of the offense, allocating the burden of persuasion to the defendant did not violate constitutional standards of due process

From Martin.

If you and others thought that that last quote was from the current case, that just proves my point.

[Alyrium Denryle]

Ok. You are fundamentally not understanding criminal law. You have to consider not just the law and the burdens of each side as written, but precedent and common law. Common law here is the most important. The unwritten but very very much binding part of our social contract upon which our legal system rests. For example, reus actus and mens rea are not, as far as I know, enshrined into law anywhere. They are common law concepts and affect how the law is practiced. What due process actually is, is another common law concept.

Here, let me go through this in some detail.

It is not a violation of the Due Process Clause for Ohio to place the burden of proving self-defense on a defendant charged with committing aggravated murder.

Self-defense is an affirmative defense as discussed. In these cases, the defendant stipulates to killing the person, but argues that--due to the necessity of self-defense--they should not be held criminally liable and the verdict should be Not Guilty. That common law doctrine shifts the burden of proof to the defense, and always has, because at that point they must prove they were defending themselves.

The defendant in Martin v. Ohio was arguing that it should be the other way around--that due process was violated because the state did not have to disprove self-defense in order to meet their basic burden of proof.

The whole point of affirmative defenses is that they are special cases. The prosecution has very specific burdens. They have to prove that the defendant performed the act, and intended to perform the act. The affirmative defense is a special case where the defendant says "Yes, all of that is true, but..."

The problem in AZ is that "child care" is not a special case. The law ends up punishing (even if no one is ever convicted) people for completely mundane and absolutely necessary conduct. The legislature, under the logic of this decision, could outlaw walking on sidewalks and require the defendant to defend themselves in court even though walking on the sidewalk is mundane and necessary conduct. This law also puts parents into conflicts with other criminal statutes. They can not clean their children and by necessity neglect them, or they can not neglect their children and by necessity molest them. Forcing an affirmative defense in such cases is patently ridiculous, and common law tacitly recognizes that such ridiculous cases not be a thing.

The precedent you cite is simply not relevant, because the decisions in question deal with long-established affirmative defenses for long-established crimes that are very very obviously actual crimes. Cleaning one's children--an act which is in fact the legal duty of parents--cannot by definition be a crime.

[bilateralrope]

Lets say we have a few assholes who want to harass a parent they don't like. They:
- Arrest the person on charges of child molestation under this law
- Drop the charges after a short while so that it doesn't reach court
- After a few days, arrest the person again on new charges from a new incident of the parent changing a diaper after the charges were dropped.

How long can that harassment go on before it gets the harassers in trouble ?

[General Zod]

Lets say we have a few assholes who want to harass a parent they don't like. They:
- Arrest the person on charges of child molestation under this law
- Drop the charges after a short while so that it doesn't reach court
- After a few days, arrest the person again on new charges from a new incident of the parent changing a diaper after the charges were dropped.

How long can that harassment go on before it gets the harassers in trouble ?

All they really have to do is call child protective services and mention this ruling.

[Flagg]

Wait, he switched out wording of a court ruling? Fuck you, DA. The law in Arizona is odious enough without you trying to prove it's worse by lying about it.

The fuck I lied about anyhing. In my first post, I quoted a summery of Martin v Ohio :

After being assaulted by her husband, the defendant killed him as he approached her. The trial court instructed the jury that it must find that the prosecution established, beyond a reasonable doubt, the following elements of aggravated murder in order to return a guilty verdict: with purpose and with prior calculation and design, causing the death of another. The jury was also instructed that although it could consider the defendant’s evidence of self-defense in determining the defendant’s guilt, she bore the burden of persuasion on proving to the jury, by a preponderance of the evidence, the defense of self-defense. The jury returned a verdict of guilty, which two state appellate courts affirmed.

Affirming the conviction, the Supreme Court ruled that since the jury could consider self-defense even if the defendant did not meet her burden of persuasion, and that proving self-defense did not disprove any of the elements of the offense, allocating the burden of persuasion to the defendant did not violate constitutional standards of due process.

Then later when someone asked how that applied to the current case, I quoted the article

Moreover, the court held that the laws posed no due process problem, because those prosecuted under the statute could still assert “lack of sexual motivation” as an “affirmative defense” at trial—one the defendant himself must prove to the jury “by a preponderance of the evidence.”

Then I requoted my first post, but changed the words "self-defense" to "(lack of sexual motivation)":

Affirming the conviction, the Supreme Court ruled that since the jury could consider (lack of sexual motivation) even if the defendant did not meet her burden of persuasion, and that proving (lack of sexual motivation) did not disprove any of the elements of the offense, allocating the burden of persuasion to the defendant did not violate constitutional standards of due process

From Martin.

If you and others thought that that last quote was from the current case, that just proves my point.

I'll retract my accusation of you lying with a mea culpa. But the way you did what you did after numerous exchanges with others was intentionally, or unintelligently (I'll give you the benefit of the doubt as an apology) confusing and seemed to be swapping out one courts ruling with another.

[Dominus Atheos]

I admit that I was on a cell phone and that the post was sloppy and confusing

But my intention was that everyone realize that I meant, I was definitely not trying to trick anyone.

[Dominus Atheos]

Ok. You are fundamentally not understanding criminal law. You have to consider not just the law and the burdens of each side as written, but precedent and common law. Common law here is the most important. The unwritten but very very much binding part of our social contract upon which our legal system rests. For example, reus actus and mens rea are not, as far as I know, enshrined into law anywhere. They are common law concepts and affect how the law is practiced. What due process actually is, is another common law concept.

Yes and Mens Rea is what this case is discussing. Specifically how its dead after martin.

Here, let me go through this in some detail.

It is not a violation of the Due Process Clause for Ohio to place the burden of proving self-defense on a defendant charged with committing aggravated murder.

Self-defense is an affirmative defense as discussed. In these cases, the defendant stipulates to killing the person, but argues that--due to the necessity of self-defense--they should not be held criminally liable and the verdict should be Not Guilty. That common law doctrine shifts the burden of proof to the defense, and always has, because at that point they must prove they were defending themselves.

Yes, I agree.

The defendant in Martin v. Ohio was arguing that it should be the other way around--that due process was violated because the state did not have to disprove self-defense in order to meet their basic burden of proof.

The whole point of affirmative defenses is that they are special cases. The prosecution has very specific burdens. They have to prove that the defendant performed the act, and intended to perform the act. The affirmative defense is a special case where the defendant says "Yes, all of that is true, but..."

What do you mean "special"? From your own post:

An affirmative defense is a long-standing principle of common law. In criminal cases, the prosecution has to prove the elements of the crime. In other words, they must prove the defendant performed the prohibited act in question. In an affirmative defense, the defendant stipulates to performing the act. But, they bring in evidence to show that for a variety of reasons, they should not be held criminally liable.

That is exactly what the Arizona law is.

The problem in AZ is that "child care" is not a special case. The law ends up punishing (even if no one is ever convicted) people for completely mundane and absolutely necessary conduct. The legislature, under the logic of this decision, could outlaw walking on sidewalks and require the defendant to defend themselves in court even though walking on the sidewalk is mundane and necessary conduct. This law also puts parents into conflicts with other criminal statutes. They can not clean their children and by necessity neglect them, or they can not neglect their children and by necessity molest them. Forcing an affirmative defense in such cases is patently ridiculous, and common law tacitly recognizes that such ridiculous cases not be a thing.

Source? evidence? Anything? I quoted SCOTUS saying the oppisite of what you just wrote, now it's your turn.

The precedent you cite is simply not relevant, because the decisions in question deal with long-established affirmative defenses for long-established crimes that are very very obviously actual crimes. Cleaning one's children--an act which is in fact the legal duty of parents--cannot by definition be a crime.

Says who? Once again, you have posted very little evidence and it only agrees with me, not you.

[Dominus Atheos]

PS, you sound like you are arguing from common sense, but I assume you know that Court decisions do not necessarily have to follow common sense. They can rule whatever the fuck they want.

[Alyrium Denryle]

Source? evidence? Anything? I quoted SCOTUS saying the oppisite of what you just wrote, now it's your turn.

A source for what? Basic logic? You cannot criminalize X and Not X, when there is no Y. And no, you did not. Supreme court precedents are usually very narrowly tailored to suit the facts of a given case--particularly in criminal cases. The cases you cite dont necessarily apply to other cases where the facts of the case are different. Those precedents establish that affirmative defenses don't on their own violate due process rights.

Due process rights are not what is at issue in this case, but a conflict in the laws. Parents are legally obligated to care for their children. Failure to do so if it results in death or injury--including massive health problems--is a felony in AZ.

13-3623. Child or vulnerable adult abuse; emotional abuse; classification; exceptions; definitions
A. Under circumstances likely to produce death or serious physical injury, any person who causes a child or vulnerable adult to suffer physical injury or, having the care or custody of a child or vulnerable adult, who causes or permits the person or health of the child or vulnerable adult to be injured or who causes or permits a child or vulnerable adult to be placed in a situation where the person or health of the child or vulnerable adult is endangered is guilty of an offense as follows:
1. If done intentionally or knowingly, the offense is a class 2 felony and if the victim is under fifteen years of age it is punishable pursuant to section 13-705.
2. If done recklessly, the offense is a class 3 felony.
3. If done with criminal negligence, the offense is a class 4 felony.

Not wiping a child's ass consistently, with the resulting infections that absolutely will cause, is abuse as defined in this statute.

So parents have the choice of molesting their children or neglecting them under AZ law. That will not, one way or the other, withstand supreme court scrutiny.

What do you mean "special"?

Are you illiterate? Special as in, unusual. Legal insanity, self-defense etc are relatively rare in murder cases. It is not a special case when 99.9% of the crimes being committed fall under the umbrella of an affirmative defense.

Says who? Once again, you have posted very little evidence and it only agrees with me, not you.

Because something you are legally obligated to do cannot simultaneously be prohibited by law.

Now, if Thanas, our resident lawyer were to come in here and tell me I am wrong, that would be one thing. But I am pretty sure he wont do so.

[Flagg]

I admit that I was on a cell phone and that the post was sloppy and confusing

But my intention was that everyone realize that I meant, I was definitely not trying to trick anyone.

Fair enough. Bowie knows I've made a mess with unintentionally confusing posts before.

[Alyrium Denryle]

PS, you sound like you are arguing from common sense, but I assume you know that Court decisions do not necessarily have to follow common sense. They can rule whatever the fuck they want.

They can. And yeah, this particular ruling will have to go to a higher court because the legal question might well be unresolved. But they typically dont make rulings that are completely "LOLDONGS", there is SOME logic behind the decision. Criminalizing parenting is not something the supreme court is going to do.

[Xisiqomelir]

I lived in this shithole state for a few years. One of the worst periods of my life.

[Broomstick]

I actually enjoyed visiting Arizona - but then being a business traveler or tourist is very different than actually living somewhere.

[Kelp]

I thought bad things tend to happen to people who get thrown into prison on child molestation charges. A plead deal with any length of prison sentence can potentially be a death sentence.

[Dominus Atheos]

PS, you sound like you are arguing from common sense, but I assume you know that Court decisions do not necessarily have to follow common sense. They can rule whatever the fuck they want.

They can. And yeah, this particular ruling will have to go to a higher court because the legal question might well be unresolved. But they typically dont make rulings that are completely "LOLDONGS", there is SOME logic behind the decision. Criminalizing parenting is not something the supreme court is going to do.

Oh ok, I see our problem. I have a much lower opinion of the courts and their rulings than you do. I can think of many court rulings that could be replaced with "LOLDONGS" repeated over and over again and still make the same amount of sense.

I concede, or at least I'm dropping this debate because we are basically arguing past each other.