Nature of the Case
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Facts
D and his family, refugees since approximately 1990, were babysitting a young neighbor. While the neighbor was there, she witnessed D kissing his eighteen-month-old son's penis. When she was picked up by her mother, the girl told her mother what she had seen. The mother had previously seen a picture of D kissing his son's penis in the D family photo album. After her daughter told her what she had seen, the mother notified the police. A warrant was executed on D's apartment. The picture of D kissing his son's penis was found in the photograph album. D admitted that it was him in the photograph and that he was kissing his son's penis. D told police it was an accepted practice in his culture. D also said it was very possible that his neighbor had seen him kissing his son's penis. D was arrested and taken to the police station. D moved for a dismissal of the case pursuant to the de minimis statute. The de minimis hearing consisted of testimony from many Afghani people who were familiar with the Afghani practice and custom of kissing a young son on all parts of his body. They testified that kissing a son's penis is common in Afghanistan, that it is done to show love for the child, and that it is the same whether the penis is kissed or entirely put into the mouth because there are no sexual feelings involved. The witnesses also testified that pursuant to Islamic law any sexual activity between an adult and a child results in the death penalty for the adult. D submitted statements from Professor Ludwig Adamec of the University of Arizona's Center for Near Eastern Studies and Saifur Halimi, a religious teacher and Director of the Afghan Mujahideen Information Bureau in New York. Both statements support the testimony of the live witnesses. The court denied D's motion and found him guilty of two counts of gross sexual assault. This appeal resulted.
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