The College Fix

When the U.S. Supreme Court reviewed the Affordable Care Act’s explicit omission of subsidies for states that don’t create their own healthcare exchanges, a 6-3 majority ruled against interpreting the law literally.

Chief Justice John Roberts wrote for the majority:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible we must interpret the Act in a way that is consistent with the former, and avoids the latter.

In other words, the court stepped in to save Congress from its own ineptitude (although there’s evidence the omission of subsidies was intentional, to spur states to create their own exchanges).

The Arizona Supreme Court just did the exact opposite, refusing to nullify a clearly written law just because of its horrible consequences – and now it’s catching flak.

AZ justice said ruling on child molestation has worrisome possibilities https://t.co/1B6PeifeSR pic.twitter.com/Omob1PSyK2

— Arizona Daily Star (@TucsonStar) September 20, 2016

The Legislature passed laws ostensibly designed to punish child molesters, but apparently forgot to make sexual intent a requisite element of molestation.

As Slate legal writer Mark Joseph Stern notes, the laws prohibit any person from “intentionally or knowingly” touching “any part of the genitals, anus or female breast” for anyone under 15. That’s it:

Indeed, read literally, the statutes would seem to prohibit parents from changing their child’s diaper. And the measures forbid both “direct and indirect touching,” meaning parents cannot even bathe their child without becoming sexual abusers under the law.

In response to a legal challenge by a man convicted of molestation because of the Legislature’s idiocy, three of five judges ruled there was no ambiguity in the law. They declined to

rewrite the statutes to require the state to prove sexual motivation, when the statutes clearly contain no such requirement.

There’s some interesting discussion between the majority and minority over whether the law is nonetheless unconstitutional, even if it’s not ambiguous. The minority, per Stern:

No one thinks that the legislature really intended to criminalize every knowing or intentional act of touching a child in the prohibited areas. Reading the statutes as doing so creates a constitutional vagueness problem, as it would mean both that people do not have fair notice of what is actually prohibited and that the laws do not adequately constrain prosecutorial discretion.

https://twitter.com/alexanderknight/status/777878962756325376

The minority emphasizes that in order to succeed in an “affirmative defense,” defendants would have to prove their innocence by demonstrating the absence of “sexual motivation” in their action. Shifting the burden of proof onto defendants to prove a negative … sound like anything familiar?

There are many reasons to look down on the majority’s reasoning, as Stern lays out: It presumes ordinary parenting is a crime that can only be excused after “a lengthy, expensive, and reputation-tarnishing trial”; innocent parents will rot in jail before a higher court exonerates them; and prosecutors will be emboldened to push even worse plea deals on anyone who is a parent.

Let’s not forget, however, that if the Legislature had taken its job seriously and crafted legislative language that passed the laugh test, Arizona parents wouldn’t be in this position.

Lawmakers have gotten a little too comfortable in trusting that they can pass any idiotic law – perhaps to sate their rabid, ignorant constituents – and judges will save them from the consequences.

Then they can rail against “judicial activism” and get re-elected. It’s a perfect scheme.

If more judges were to let lawmakers suffer the consequences of their foolishness, perhaps voters would sober up and stop demanding the most draconian, unjust, utterly pointless measures against sexual offenses, real or perceived.

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