De Minimis

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Under certain circumstances, a crime committed may be so trivial, and the harm to the victim may be completely non-existent, that the defense attorney may argue that criminal proceedings will result in more harm to society than a dismissal of the case. Under these circumstances, the defense attorney will argue that the offense was de minimis and any technical violation of the law should be ignored. The de minimis defense may also be argued simultaneously with the cultural defense.

This defense may be formally codified in a jurisdiction's criminal procedure code[1] or may exist simply in case law. Even in those jurisdictions where the defense is not recognized by name, it may arise during informal negotiations between defense attorneys and prosecutors.

Country Specific Applications

United States

Several states recognize the de minimis defense either by statute or at common law. Maine has codified the defense as having three requirements:

A. Was within a customary license or tolerance, which was not expressly refused by the person whose interest was infringed and which is not inconsistent with the purpose of the law defining the crime; or

B. Did not actually cause or threaten the harm sought to be prevented by the law defining the crime or did so only to an extent too trivial to warrant the condemnation of conviction; or

C. Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in defining the crime. [2]

In State v. Karger [3] a court in Maine reversed a conviction of an Afghan immigrant for two counts of gross sexual assault. The defendant had kissed his 18-month old son's penis in a sign of affection that is common in his culture. The court determined that there was no harm to the infant and that the defendant's act was not intended for sexual gratification, therefore, the harm was de minimis.

See Defenses


  1. See, MODEL PENAL CODE § 2.12 (1962)
  2. 17-A Me. Rev. Stat. § 12
  3. State v. Kargar, 679 A.2d 81 (Me. 1996)