Allocating Burdens of Proof in a Criminal Case: An Arizona Decision Raises Questions

Posted in: Criminal Law

In State v. Holle, the Arizona Supreme Court considered a question about the allocation of burdens between the prosecution and the defense in a criminal case. The question was whether an Arizona child molestation statute properly placed the burden of proving no sexual motive on the defendant as an affirmative defense rather than requiring the government to prove a sexual motive as part of its case against the defendant. The court concluded that the statute did—and properly did—create an affirmative defense for those who lack a sexual motive. In this column, I will consider the wisdom of this ruling.

The Arizona Law on Child Molestation

Under Arizona law, a defendant has a defense to sexual abuse or child molestation if he “was not motivated by a sexual interest.” The court in Holle considered first whether this statutory defense qualifies as an affirmative defense (provable by a preponderance of the evidence by the defendant), as instructed to the jury in Holle’s case, or whether it simply expanded upon the elements of the offenses at issue, such that having a sexual interest is an element that the prosecution must prove to the jury beyond a reasonable doubt. The court found the lack of sexual interest to be an affirmative defense.

For our purposes, the interesting question is whether it is appropriate to designate the lack of a sexual interest as an affirmative defense that the defendant must prove at his trial. On one argument, the lack of a sexual motive renders the behavior at issue in the “elements” portion of the criminal law innocent. That is, touching the private parts of a child, absent a sexual motive, is innocent conduct that should not be subject to the criminal law. On this argument, regardless of what the statute in Arizona said, a fair statute would compel the government to prove the presence of a sexual motive (in addition to having to prove the touching of a child’s private parts), as a prerequisite to defining an act that would properly constitute a crime.

First Principles

If we were starting from first principles, this argument would be a strong one. After all, as the defendant points out, many people touch the private parts of children for thoroughly innocent reasons. Parents, for example, touch their children’s genitalia during diaper changes and baths, and pediatricians touch their patients’ genitals in the course of examining them during a well visit. With the statute providing “lack of sexual motive” as an affirmative defense, parents and pediatricians are prima facie guilty of molesting the children whom they have touched, and they simply have an excuse for their behavior (no sexual motive) that they must prove by a preponderance of the evidence. As the dissent in Holle suggests, this seems like an absurd result.

Furthermore, the Supreme Court has said in Patterson v. New York that “there are obviously constitutional limits beyond which the states may not go,” in designating particular conduct an affirmative defense that the defendant must prove rather than placing it within the set of elements provable by the prosecution. This means that even though states are generally free to define as they please what constitutes a crime and what constitutes a defense, there are constitutional boundaries to this freedom, and a law that makes criminals of parents (exercising their parental rights) and conscientious pediatricians perhaps goes too far in precisely the manner contemplated by the Court.


The problem with this argument is that we are not writing on a clean slate or starting from first principles in this area of the law. The Supreme Court has said, in Mullaney v. Wilbur, that what makes a burden allocation unconstitutional is when the state has defined conduct as an element of the offense and then required the defense to prove the negation of that element. In Wilbur, the Court found that the state unconstitutionally shifted the burden of persuasion to the defendant by requiring the defense to prove a heat of passion defense. In a different case, however, Patterson, the Court found that it was constitutionally valid to place the burden on a defendant to prove extreme emotional disturbance. What seemed to matter to the Court, then, was the wording of the statute and whether, as a formal matter, the defendant could be understood to have to disprove an element of the offense. Yet in Patterson, the Court also said that there are substantive limits to what a legislature may place in the category of affirmative defenses, even—presumably—if it did so without formally requiring a defendant to disprove an element of an offense.

It is at this point that we look to the case of Martin v. Ohio. In that case, the Supreme Court upheld a statute in which the defendant bore the burden of proving self-defense. The case arose in the context of a murder prosecution. This seems (to me, at least) to be an outrageous allocation of burdens. What it means, in effect, is that if one person kills another person in self-defense, and the jury could go either way on whether it truly was self-defense, the person can be convicted of murder. This appears especially wrong in light of the right to self-defense on which the Supreme Court’s announced right to bear arms in District of Columbia v. Heller is arguably predicated. If the government should ever be forced to bear the burden of proving that otherwise innocent conduct is truly criminal, one would think it would in the case of self-defense. So long as there is a reasonable doubt about whether a defendant acted in self-defense, a jury should acquit the defendant.

Yet that is not what the Supreme Court said. Despite the fact that we have a long history of considering self-defense a right on the part of someone who is attacked, the Court has yet to reverse its ruling in Martin that self-defense can be properly designated an affirmative defense. It seems to follow logically that the lack of a sexual motive may also be properly designated an affirmative defense. Though it is true that parents and pediatricians might (in theory) have to prove affirmatively their lack of a sexual motive, they are arguably in no better position to complain than a person who kills an assailant in self-defense, the latter of whom is far more likely, as a practical matter, to find himself the target of a prosecution. Furthermore, while those who kill in self-defense are always innocent, those who touch children’s private parts without a sexual motive are not. Someone, for example, who touches a child out of sadism but derives no sexual gratification from doing so is not an “innocent” person, in the sense of having done nothing wrong.

A Better Result

Notwithstanding the Court’s ruling on self-defense and the fact that people other than parents and pediatricians could legitimately be prosecuted for touching a child without a sexual motive, there is something troubling about upholding a statute that sweeps in innocent (and even constitutionally protected) conduct as presumptively criminal, in the absence of affirmative proof to the contrary. The Court’s ruling that a defendant may not be forced to disprove formal elements of an offense seems to have little meaning if careful drafting of a statute can avoid the impact of the ruling. A better outcome would be for the Court to say that some conduct, including self-defense and perhaps including some non-sexually-motivated touching of a child, may simply not be classified as an affirmative defense to be proved by the defendant in a criminal case. This would give teeth to Mullaney v. Wilbur and mean that substantively innocent people would not need to fear a statutory regime in which they must prove their innocence to the jury’s satisfaction. This would also best effectuate the meaning of In re Winship, when the Court held that to convict a person of a crime, the government must prove that the person is guilty beyond any reasonable doubt.