## Facts

- Mohammad Kargar, an Afghani refugee living in Portland, Maine, kissed his 18-month-old son’s penis in the family home.
- A young neighbor being babysat observed the act and reported it to her mother; the mother had previously seen a photograph depicting the same conduct in the family’s photo album.
- Police executed a search warrant, found the photograph, and Kargar admitted the conduct depicted.
- Kargar stated the act was an affectionate, culturally accepted practice, not done for sexual gratification.
- At a post-verdict hearing, multiple Afghani witnesses testified that kissing a young child, including on the genitals, is a common nonsexual expression of love in their culture, with no sexual feelings involved.
- No evidence showed physical or psychological harm to the child, or any attempt by Kargar to conceal the conduct.

## Issues

1. Whether the trial court should have dismissed the gross sexual assault charges as de minimis under 17-A M.R.S.A. § 12 because the conduct, considering attendant circumstances, did not cause or threaten the harm targeted by the gross sexual assault statute.
2. Whether culturally rooted, openly performed, nonsexual parental conduct with no demonstrated harm can fall outside the Legislature’s intended reach for Class A gross sexual assault despite literal statutory coverage.

## Decision

- The Maine Supreme Judicial Court vacated the judgments of conviction.
- The court held the trial court erred in denying dismissal under the de minimis statute.
- The court concluded that, although the conduct fit the statute’s literal terms, the attendant circumstances showed the targeted harm—sexual exploitation or abuse of a child—was not implicated.
- The case was remanded for proceedings consistent with dismissal under the de minimis statute.

## Legal Principles

- Maine’s de minimis statute permits dismissal when, considering the conduct and attendant circumstances, the alleged offense does not actually cause or threaten the harm or evil sought to be prevented, or the harm is too trivial to warrant conviction.
- De minimis review may apply even when the defendant’s acts satisfy the literal elements of the charged offense.
- In assessing “attendant circumstances,” courts may consider evidence bearing on whether the conduct is sexual in character as a practical matter, including openness, lack of concealment, absence of sexual intent, absence of harm, and the social meaning of the act within the defendant’s community.
- Consideration of cultural practice in a de minimis analysis functions as contextual evidence relevant to statutory purpose, not as a freestanding “cultural defense.”
- Disproportionate penal and collateral consequences may reinforce a de minimis determination when the Legislature’s targeted harm is not present.

## Conclusion

The court held that imposing Class A gross sexual assault convictions for a father’s culturally rooted, nonsecretive, nonsexual act toward his toddler—absent proof of harm or sexual gratification—did not serve the gross sexual assault statute’s purpose and should have been dismissed as de minimis.


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