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State v. Kargar | 679 A.2d 81 (1996)

Some rules are meant to be broken. Whether due to cultural, religious, safety, or other reasons, sometimes the conduct a law forbids isn’t improper. As we’ll see in State versus Kargar the de minimis statute provides one avenue for criminal defendants to gain cultural exceptions for acts that meet the definition of a crime.

In 1990, Mohammad Kargar immigrated to the United States as a refugee from Afghanistan. While in the United States, Kargar had a son. One day his neighbor flipped through the Kargars’ family photo album and noticed a photo of Kargar kissing his son’s penis. Then, in 1993, the neighbor’s daughter was babysitting and witnessed Kargar kiss his son’s penis. She told her mother, who notified the police.

Kargar was charged with two counts of gross sexual assault in the state of Maine. He argued that the charges should be dismissed under the de minimis statute. This statute allows a court to dismiss charges when it finds that the activity being punished wasn’t considered by lawmakers at the time the law was written and isn’t the type of activity that they meant to punish. Kargar presented witnesses who explained that, in Afghanistan, it’s an accepted custom to kiss the penis of one’s infant or toddler sons as a sign of affection. He was convicted of both counts in the Superior Court of Cumberland County. Kargar appealed to the Maine Supreme Judicial Court.

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