Cultural Defenses & Ignorance of the Law

On Tuesday, the First Circuit issued U.S. v. Ortiz-Graulau, 06-1768:

There, the Court affirms a conviction for exploiting a minor (taking sexually explicit photos).  The defendant had been living with the 14-year old girl, and the Court noted that he probably did not understand that his conduct was illegal:  "the government points to no proof that Ortiz knew the law, and his lack of concealment and the then-applicable age of consent in Puerto Rico support his factual claim."  But, the Court stated, nothing suggested that "this is a rare instance in which ignorance of the law is a defense, although this might well be relevant in sentencing," citing Cheek v. U.S., 498 U.S. 192-199 (1991).  (Cheek, in turn, is a tax case that goes into the required state of mind for violations of the tax laws.) 

This raises the question of what those rare instances are in which ignorance should be a defense.  I’ve got one.  State v. Kargar, 679 A.2d 81 (Me. 1996).  We handled this case starting at sentencing and on appeal, and I ended up co-authoring a law review article on it (Culture and Crime: Kargar and the Existing Framework for a Cultural Defense, 47 Buff.L.Rev. 829 (1999).)

If you google, you’ll get a number of hits about the case and article, and there is a fair amount of literature on the case, because it deals with an issue of particular relevance these days — whether/how a defendant’s cultural background should affect guilt — ; crosses multiple subject areas – law, sociology, etc.; and is one of the few published decisions that deals with this issue in terms of a defense, as opposed to just a mitigating factor for sentencing.  I’ve gotten calls, for example, from professors using the case in their classes.

The determining facts in Kargar were fairly straight forward and undisputed.  Basically, there was a photograph of Muhammad Kargar kissing his baby’s penis at his circumcision.  The State conceded that there was no sexual intent to this act, and in Kargar’s culture the act was deemed deemed neither illegal nor immoral.  Under the Maine statute for gross sexual conduct, however, nothing is required except mouth touching genitals — no mens rea, nothing.  Kargar admitted to the elements of the crime, and the Cumberland County District Attorney’s office chose to prosecute.

The Superior Court found Kargar guilty at trial, and while it did not impose any jail time, the problem was that he is an Afghan immigrant, and was going to be subject to deportation due to the conviction.  The whole episode was a nightmare, since, among other things, he wasn’t allowed to live with his family for two years while all this was going on.  (Welcome to America.)

In the end, justice was done, thanks to a Maine SJC that looks at the big picture, and to a Maine Legislature that gave the SJC a platform for doing so:  the de minimis statute:

This statute allows a court to dismiss a prosecution when activity, while falling within the letter of a criminal statute, does not constitute the sort of conduct intended to fall within the ambit of a crime.  The statute is derived from the Model Penal Code, and about half the states have similar legislation.  For more details, you can read the law review article or email me.

The SJC reversed the conviction.  I am happy to say that the Kargars still live in the Portland suburbs.  They’ve worked hard, accumulated some property, pay their taxes and are the kind of citizens that personify the melting pot paradigm.  Chalk one up for the good guys.

The hot topic in the literature now is when a defendant’s culture should be taken into account, and how, and how such consideration jives with the general premise, noted in Ortiz, that ignorance of the law is no excuse.  Again, the article goes into these points in more detail; its general thesis is that each jurisdiction should have this sort of statute to provide an off ramp for the relatively rare situations when justice demands relief. 

One obvious question is what to do when your jurisdiction doesn’t have this kind of  statute.  Then you’ve got to rely on our old standby, fuzzy due process, with the leading precedent Morrisette v. U.S., 342 U.S. 246 (1952).  I threw that argument into the briefing in Kargar, along with some other defenses that the Court didn’t have to address.

There are a couple of morals to this story.  One is that some of the most rewarding work you can do is pro bono – the Afghan Embassy had called us to see if we could help.  I always get more out of these freebies than I put in.  Perhaps the Memorial Day weekend is a good time to think about doing our bit as officers of the court, and what exactly the American culture is that the Kargars came here for.

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