• Burden must be on the State to PROVE sexual motivation or intent

    Here’s a case that may be of interest to those of you with a loved one serving time for child molestation which occurred after approximately August 1997 and where there was a question of sexual intent or motivation.  In other words, this case will NOT apply to or help a defendant who molested a child, for example,  while the child was sleeping in his/her bed and the molestation was inside of or under clothing.

    This particular case (attached) applies to a defendant who was accused of touching some kids at a swimming pool — on top of their swim suits, apparently — and the state just assumed that it was for sexual intent or motivation.  However, this case states that the burden must be on the State to PROVE sexual motivation or intent.  The state cannot simply assume it.  And the State cannot shift the burden of proving it was not sexually motivated or intended on to the defendant.

    The defendant, Mr. May, received a decision from the Arizona Supreme Court which said it was perfectly okay for the state to shift this burden in this manner.  He appealed to the federal district court and won.  Now, the State has filed an appeal with the Ninth Circuit, but if the case holds up there, it will likely remain in place. This ruling does not apply to all offenders convicted of child molestation.  However, it will apply to some if there is a logical argument that sexual motivation or intent was in question as part of the facts of the case.

    Meanwhile, the remedy for someone who believes that the case applies to him is to file a Rule 32 (Petition for Post Conviction Relief) alleging a change in the law.  Again, it applies only to cases which occurred roughly after August 1997 (when the statute changed to eliminate the burden on the state to prove intent/motivation).  If the facts are right, this would apply to those who went to trial and those who took plea agreements, and it would apply to those convicted of attempted child molestation as well.

    If you have questions about a Rule 32 and its applicability to your loved one’s case, as well as the costs for professional assistance, you may call us at 480-966-8116.  Or send an email to : middlegroundprisonreform@msn.com

    Donna Leone Hamm, Judge (Ret.)
    Director, Middle Ground Prison Reform
    CEO, Donna Leone Hamm Consulting
    (480) 966-8116
    website: middlegroundprisonreform.org


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