State v. Kargar

Supreme Judicial Court of Maine · 1996 · Criminal Law

Criminal Lawde minimis dismissalgross sexual assaultde minimis statute17-A M.R.S.A. § 12gross sexual assaultattendant circumstanceslegislative contemplation

Facts

A neighbor child saw Kargar kiss his eighteen-month-old son's penis while Kargar's family was babysitting her, and police later found a photograph in the family album showing the same conduct. Kargar admitted the conduct and told police it was an accepted and common practice in his culture. At the de minimis hearing, multiple Afghan witnesses testified without contradiction that kissing a young son on all parts of his body, including the penis, was a customary expression of love with no sexual meaning. The trial court later acknowledged there was no sexual gratification and no victim impact, but still denied the motion and convicted him.

Issue

Did the trial court err as a matter of law in denying dismissal under 17-A M.R.S.A. § 12 by failing to consider the full range of relevant attendant circumstances, including culture, lack of harm, and the innocent nature of the conduct, when deciding whether the conduct could reasonably have been envisaged by the Legislature under section 12(1)(C)?

Rule

Under Maine's de minimis statute, the court may dismiss a prosecution if, having regard to the nature of the conduct and the attendant circumstances, the conduct falls within any one of section 12(1)'s provisions. In analyzing a de minimis motion, courts should review the full range of relevant factors, including the defendant's background, knowledge of illegality and consequences, the circumstances of the offense, resulting harm or threatened harm, probable community impact, seriousness of the infraction in terms of punishment, mitigating circumstances, possible improper motives of the complainant or prosecutor, and any other data revealing the nature and degree of culpability. Under section 12(1)(C), the question is not whether the conduct fits the criminal statute, but whether the conduct, in light of its extenuating circumstances, can reasonably be regarded as having been envisaged by the Legislature in defining the crime.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Portland, Maine, Omar Rahimi is charged under a statute that plainly criminalizes direct mouth-to-genitals contact with a child under fourteen. At a pretrial hearing, Omar presents uncontradicted testimony from several members of his immigrant community that briefly kissing an infant son on every part of the body is a customary parental sign of affection, not sexual in meaning; the contact occurred openly in the living room, caused no injury, and the child showed no distress.

If the trial judge denies Omar's motion to dismiss solely because the admitted conduct satisfies every element of the offense, which argument on appeal is strongest?

Explanation. The majority held that the trial court erred as a matter of law by focusing on whether the conduct met the offense definition instead of asking, under section 12(1)(C), whether the conduct in light of its extenuating circumstances could reasonably have been regarded as envisaged by the Legislature. De minimis review is case-specific and must account for attendant circumstances such as the defendant's background, the innocent nature of the conduct, lack of harm, and the surrounding context.