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.


A.   There really was social harm here, even though there might not have been such a risk in Holland.  The legislature has decided that it’s dangerous to leave children unattended in that way.  I don’t think the mother should get off on a de minimis basis, but perhaps she would have a mistake-of-fact defense (I need to review that, though).

B.    Again, it seems as though “when in Rome”…etc.  A lot of people here would think the Mohameds’ conduct was morally unacceptable on a strict liability basis.  When you have statutes dealing with principles of morality like that, a lot of people probably believe that that social harm is in the act itself, which they consider immoral.  It’s tricky if you’re going to say that people have no right to make or enforce such judgments in their own country.

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.


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