PORTLAND, Maine - The Maine Supreme Court overturned a refugee's sexual assault conviction yesterday in a case that pitted Afghani social customs against Western sexual mores and legal standards.
The Justices unanimously overturned the conviction of Mohammad Kargar, ruling that he did not break the law by kissing his 18-month-old son's penis because the act was cultural-not sexual-in nature.
"Although it may be difficult for us as a society to separate Kargar's conduct from our notions of sexual abuse, that difficulty should not result in a felony conviction in this case," Associate Justice Howard Dana, Jr., wrote for the court.
Kargar, who had come to Maine in 1990 to escape the war in Afghanistan, argued, with the support of expert witnesses, that it was common for an Afghani man to display his love for a young son by kissing the boy's penis.
Kargar was arrested after a baby sitter told her mother of a picture of him kissing the boy displayed in the family's photo album. Kargar was given a suspended sentence, but required to register with authorities as a sexual offender.
Prosecutors acknowledged there was little evidence Kargar intended to molest his son, but argued his actions were still criminal because state law prohibits adults from having oral contact with children's genitals.
The justices said the trial judge erred when he refused to dismiss the charge without considering extenuating evidence such as Kargar's native social customs, the lack of harm to the victim, and Kargar's ignorance of U.S. sexual mores.