Introduction

The legal landscape surrounding child molestation statutes in Arizona has taken a seismic shift due to a recent Ninth Circuit Court of Appeals decision. The case of Bradley Bogansky v. David Shinn revisits Arizona’s controversial burden-shifting framework, wherein defendants must prove a lack of sexual intent—an approach deemed unconstitutional by federal judges. This case highlights not only the fraught nature of Arizona’s legal system but also the broader impact such rulings could have on the rights of defendants in criminal cases nationwide.

In this article, we unpack the legal intricacies and implications of the Ninth Circuit decision, tracing the evolution of Arizona’s molestation statutes, the constitutional challenges they pose, and what this means for the future of criminal justice.

The Bogansky Case: A Brief Overview

At the heart of this case is Bradley Bogansky, a foster parent accused of child molestation. In 2017, a jury found Bogansky guilty of knowingly touching the private parts of children under his care in violation of Arizona’s molestation statute (ARS § 13-1401). During his trial, Bogansky raised an affirmative defense, asserting that the contact occurred while bathing the children and was not motivated by sexual intent. Despite this defense—and in keeping with Arizona law—he was required to prove his lack of sexual intent by a “preponderance of the evidence.”

However, a Ninth Circuit panel ruled that Arizona’s burden-shifting framework violates the due process protections of the Fourteenth Amendment. Specifically, the panel concluded that requiring defendants to disprove sexual intent impermissibly transfers the state’s burden of proving all elements of the crime. This decision not only upends decades-long legal precedent in Arizona but also raises significant questions about justice and procedural fairness in criminal trials.

The Evolution of Arizona’s Child Molestation Laws

Arizona’s legal framework regarding child molestation has evolved over the decades, often in ways that jeopardize constitutional protections. Key milestones include:

1. Pre-1990s: A Strict Scienter Requirement

Arizona’s molestation statutes once required prosecutors to prove scienter—or the defendant’s criminal intent—beyond a reasonable doubt. For instance, a 1965 version of the law defined child molestation as touching a child’s private parts with abnormal sexual motivation. At that time, proving the defendant’s intent lay squarely with the state.

2. 1993 Revision: Affirmative Defense Introduced

In 1993, Arizona revised its laws to allow defendants to claim a lack of sexual motivation as an affirmative defense. Unlike a traditional defense, an affirmative defense requires the defendant to admit to the conduct in question and then establish that mitigating factors (such as lack of intent) justify or excuse their actions. While this shift purportedly clarified ambiguities in prior statutes, critics argued that it placed an undue burden on defendants.

3. 1997 Changes: Proving the Negative

The contentious 1997 amendment eliminated the state’s obligation to prove sexual motivation altogether, codifying the requirement that defendants demonstrate their lack of sexual intent. This marked a significant deviation from constitutional principles established by the U.S. Supreme Court, which prohibit states from shifting the burden of proof to defendants in criminal cases.

4. Divided Courts and Holly Decisions

The issue of sexual intent reached Arizona’s appellate courts in a series of cases, most notably State v. Holly. While Holly I ruled that sexual intent remained an implicit element requiring proof by prosecutors, the state Supreme Court reversed this in Holly II, affirming the legislature’s intent to treat sexual intent as an affirmative defense. This created significant precedent, which the Ninth Circuit now finds constitutionally flawed.

The Constitutional Question: Can the State Shift the Burden?

Central to the Ninth Circuit’s ruling is the concept of burden shifting. The U.S. legal system, rooted in due process principles, requires prosecutors to prove every element of a charge beyond a reasonable doubt. For charges like child molestation, this includes proving criminal intent. Arizona’s approach, however, effectively criminalized even lawful conduct—such as bathing a child—by removing intent as a prosecutorial burden and requiring defendants to disprove sexual motivation.

The Ninth Circuit hammered this point, stating, “Arizona is the only jurisdiction ever to uphold the constitutionality of putting the burden of disproving sexual intent on the accused.” Citing critical Supreme Court cases such as Mullaney v. Wilbur (1975) and Patterson v. New York (1977), which prohibit burden shifting on core elements of crimes, the panel concluded that Arizona’s laws violate the Fourteenth Amendment.

Implications for Justice and Due Process

1. Unequal Burden on Defendants

Requiring a defendant to prove their lack of sexual interest inherently violates their right to remain silent and shifts the prosecutor’s responsibility onto the accused. This effectively forces defendants—like Bogansky—to testify, undermining constitutional rights guaranteed under the Fifth Amendment.

2. Risk of Wrongful Convictions

As the Ninth Circuit noted, Arizona’s statutes allow for the prosecution of everyday conduct. For instance, a parent changing a diaper or a physician performing an examination could face criminal charges despite lacking illicit intent. The vagueness and broad reach of the law raise the risk of innocent people being convicted of heinous crimes, with life-altering consequences.

3. Precedent for Federal Habeas Cases

Remarkably, this is the second recent instance of Arizona’s molestation statute being struck down in federal habeas proceedings, following the Stephen May case in 2017. These rulings signal a growing willingness among federal courts to scrutinize state laws that veer from constitutional norms.

What’s Next for This Case?

1. Arizona’s Likely Appeal

Arizona will almost certainly appeal the Ninth Circuit’s decision, possibly seeking a rehearing before the full circuit (en banc). If unsuccessful, the state could petition the U.S. Supreme Court for review. Given the high stakes—including potential implications for hundreds of past convictions—a Supreme Court showdown seems probable.

2. Implications for Stephen May and Others

If the Ninth Circuit’s decision is upheld, it could pave the way for appeals by other individuals convicted under Arizona’s unconstitutional statutes. Defendants like Stephen May, who remain incarcerated, may have renewed hope for justice.

3. Nationwide Ripple Effects

Should the case reach the Supreme Court, its decision could set a nationwide precedent restricting or endorsing burden-shifting frameworks. This would have far-reaching consequences for criminal law in other jurisdictions, especially those with similarly questionable statutory schemes.

Conclusion

The Ninth Circuit’s decision in Bogansky v. Shinn is far more than a single victory; it’s a resounding critique of Arizona’s burden-shifting legal framework and a milestone in the fight for due process rights. By reasserting the principle that criminal intent must be proven by the state, the court has rebalanced the scales of justice—tilting them away from prosecutorial overreach and back toward fairness.

For now, Bradley Bogansky stands as one example of a flawed justice system corrected by federal intervention. But the ultimate resolution of this case may depend on the Supreme Court—a final battleground for defining the scope of constitutional protections in our legal system.

Key Takeaways and Next Steps

  1. Legal Advocacy is Essential: Individuals in Arizona charged under the child molestation statute should consult constitutional law experts to evaluate their cases.
  2. Prepare for Broader Impacts: Jurisdictions with similar affirmative defense policies should revisit their statutes to avoid constitutional challenges.
  3. Stay Informed: Follow the Ninth Circuit’s developments and any forthcoming Supreme Court decisions on this pivotal issue.

Arizona’s case serves as a stark reminder that even well-meaning laws can lead to unjust outcomes when constitutional rights are compromised. Let us watch this case with vigilance for what it reveals about the balance between public safety and fairness under the law.