Federal Judge Releases Convicted Child Molester On Procedural Grounds

Published: Wednesday, April 5, 2017 - 8:49am

A federal judge released a convicted child molester after declaring the man’s constitutional rights were ignored.  

Federal Court Judge Neil Wake ordered Stephen E. May’s release from prison last week. May was 10 years into a conviction stemming from five counts of child molestation.  

Wake focused on the way prosecutors handled the case when they shifted the burden of proof onto May. That, he said, was a violation of his constitutional right to remain innocent until proven guilty.

Because Arizona law requires the state prove “intentional and knowing” touching of a child’s private parts, the defendant can avoid conviction if there is proof it was not motivated by a sexual interest.

That placed the legal obligation on prosecutors to prove all elements of the crime, not the defendant’s.

The judge is worried the state’s interpretation of what constitutes sexual conduct is too broad and criminalizes “wide swaths of conduct” without differentiating between culpable, innocent and constitutionally protected conduct. As written, he warned it could make parents potential felons for diapering or bathing an infant, as well as pediatricians for conducting routine doctor’s exams.

Rejecting a similar challenge to the law last year, Arizona’s Supreme Court doubted prosecutors would charge parents, physicians, and the like, once evidence shows there was no sexual intent.  

Citing a Pima County case of a father forced to defend himself in court for bathing his child, Wake wrote, “Just trusting the government to do the right thing is poor dressing for constitutional wounds.”

The attorney general's office is asking the 9th U.S. Circuit Court of Appeals to overturn what Wake did and send May back to prison.

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