State
v. Kargar
Supreme Judicial Court of Maine, 1996.
679 A.2d 81.
Dressler,
pp. 684-687
Facts: Kargar
kissed the genitals of his eighteen-month-old son, which is an acceptable
practice in his culture. He was indicted
for two counts of gross sexual assault.
He moved to dismiss the case based on the de minimis
statute, which basically gives courts reasonable flexibility in administering
criminal statutes in unusual cases. His
motion was denied and he was convicted.
He appealed on the basis that his motion should have been granted.
Issue: Should the trial court have
dismissed the charges against Kargar based on a “cultural
defense”?
Rule: If the admittedly criminal
conduct was not envisioned by the legislature when it defined the crime, it
might not be punishable under the de minimis statute.
Analysis: The court looks at the legislative
history of the gross sexual assault statute and finds that it specifically
excluded certain “innocent” contacts not done for sexual gratification or to
cause harm. The court finds that if the legislature
had been aware of the conduct in question in this case, it may have been
excluded as an offense.
Conclusion: The conviction is
overturned.
Notes
and Questions
1. The problem is
that some people might want to forbid conduct that is entirely innocent in
other cultures that we think is wrong.
For example, no matter how innocent “female circumcision” or foot-binding
is in other cultures, we may have a strong interest in forbidding and punishing
it here. Some people might find Kargar’s conduct so inherently disgusting that they would even
support having it punished on a strict liability basis. If a majority of people in a certain jurisdiction
felt that way, there would be a tricky question of constitutional rights or
judicial activism set against the power of the legislature as the
representatives of the people.
2.
A. There really
was social harm here, even though there might not have been such a risk in
B. Again, it
seems as though “when in
3. I don’t think
cultural defenses are necessary, because in any appropriate case, I think the defendant
could be acquitted based on the lack of a mens rea.