State v. Kargar

Brief Fact Summary.

The Defendant, Mohammad Kargar (Defendant), an Afghani refugee, was convicted of two counts of gross sexual assault for kissing his young son’s penis. The Defendant sought to have the charges dismissed under a de minimis statute arguing that in his culture, kissing his son’s penis is an acceptable practice.

Synopsis of Rule of Law.

Since the defendant’s culture approved of the defendant’s conduct, he did not violate the sexual assault statute.

Facts.

A neighbor, whom the Defendant and his family were babysitting, saw the defendant kiss his eighteen-month-old son’s penis. She reported this incident to her mother who reported that she had also seen a photograph of the Defendant kissing his son’s penis. The police were notified and the Defendant was arrested and charged with two counts of gross sexual assault. At the jury-waived trial, the Defendant sought to have the charges dismissed pursuant to the de minimis statute on the grounds that, among other things, his culture accepted the practice. The trial judge denied the motion and convicted the Defendant on both counts.

Issue.

Is cultural acceptance of proscribed conduct a valid reason to have the charges dismissed as de minimis?

Held.

Yes. Since the Defendant’s culture accepted the practice of kissing one’s son’s penis, there was inherently nothing “sexual” about the Defendant’s conduct. The Legislature could not have envisioned such a situation when enacting the statute, so the absence of any exception for cultural acceptance in the statute is not relevant. Rather, it would be a great injustice to let the Defendant’s conviction stand.

Discussion.

Importantly, cultural acceptance is not a “defense.” Rather, the charges were dismissed as de minimis. In other words, the Defendant conduct, though technically in violation of the statute, was not so offensive to warrant conviction for the c