ARIZONA HOUSE OF REPRESENTATIVES

HB 2283: definition; defenses; sexual offenses

PRIME SPONSOR: Representative Kern, LD 20

BILL STATUS: House Engrossed

Abstract

Relating to the definition of sexual contact.

Provisions

1. Excludes from the definition of sexual contact any direct/indirect touching, fondling or manipulating that a reasonable person would recognize as normal caretaking interactions or responsibilities with a minor or a vulnerable adult. (Sec 1)

2. Strikes the defense for sexual abuse or molestation if the defendant was not motivated by sexual interest. (Sec 2)

3. Makes a conforming change. (Sec 3)

Current Law

A.R.S. § 13-1404 states that a person commits sexual abuse by intentionally or knowingly engaging in sexual contact with a person:

· Over 15 years old without consent, or

· Under 15 years old, if the contact is limited to the female breast. 

Sexual abuse is a Class 5 felony (1 ½ years, up to $150,000 plus surcharges) if the victim is 15 years or older; it is a Class 3 felony with a sentencing enhancement if the victim is under 15 years of age.

A.R.S. § 13-1410, molestation of a child, includes sexual contact with a person under 15 years old that does not involve the female breast.  Molestation is a Class 2 felony with the same sentencing enhancement (dangerous crimes against children).   A.R.S. § 13-1407(E) contains a defense to both sexual abuse and molestation if the defendant was not motivated by sexual interest.  The defense must be raised by the defendant and proven by preponderance. 

Additional Information

In September 2016, the Arizona Supreme Court issued an opinion in State v Holle.  Jerry Charles Holle was convicted of both child molestation and sexual abuse of a minor under 15. Before trial, he sought to instruct the jury that the state was required to prove sexual motivation for the offenses charged beyond a reasonable doubt. The trial court disagreed. On appeal, the Court of Appeals, Div I determined that the trial court erred in its jury instruction that Holle prove his conduct was not motivated by sexual interest. The sentence was not overturned, but on appeal, the Arizona Supreme Court overturned the appeals court ruling, stating: 

"Under A.R.S. § 13-1407(E), “[i]t is a defense to a prosecution” for sexual abuse or child molestation “that the defendant was not motivated by a sexual interest. We hold that lack of such motivation is an affirmative defense that a defendant must prove, and thus the state need not prove as an element of those crimes that a defendant’s conduct was motivated by a sexual interest."

State v Holle was a split decision of the Court; two Justices filed a dissenting opinion. Both the opinion and dissent are available here.

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Fifty-third Legislature                  HB 2283

Second Regular Session                               Version 3: House Engrossed

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