State v. Kargar
Supreme Judicial Court of Maine, 1996.
679 A.2d 81.
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
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.