In Re P.M.

 NOTICE:  This opinion is subject to motions for reargument under R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 88-380



 In re P.M., Juvenile                         Supreme Court

                                              On Appeal from
                                              District Court of Vermont,
                                              Unit No. 3, Orleans Circuit

                                              March Term, 1990

 Joseph J. Wolchik, J., on motion to dismiss
 Shireen Avis Fisher, J., at merits hearing

 Jane Woodruff, Orleans County State's Attorney, Newport, and Gary S.
   Kessler, Resource Attorney, and Pamela Hall Johnson, Department of State's
   Attorneys, Montpelier, for plaintiff-appellee

 Walter M. Morris, Jr., Defender General, and William A. Nelson, Appellate
    Defender, Montpelier, for plaintiff-appellant


 PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.



      GIBSON, J.   P.M. appeals from a judgment of the district court,
 sitting as a juvenile court, finding him guilty of committing a delinquent
 act, engaging in lewd and lascivious conduct with a child.  We affirm.
                                     I.
      The findings of the court are not contested on appeal.  P.M., who was
 nearly fifteen years old at the time of the incident on September 16, 1986,
 engaged in inappropriate sexual activity with M.C., a neighborhood girl who
 was just short of her ninth birthday.  The girl "had a crush" on P.M. and
 was close to his family.  Taking advantage of M.C.'s vulnerability, her
 feelings for him and his family, and the disparity in their ages, P.M.
 kissed and hugged M.C., and rubbed the genital areas of his partially
 clothed body against the genital areas of M.C.'s partially clothed body in
 order to gratify his own sexual desires.  M.C. initially submitted to P.M.'s
 sexual advances, but then asked him to stop.  P.M. never threatened M.C. or
 used force during the incident, and he ceased his advances upon her request.
 M.C. reported the incident to her mother shortly after it took place.  P.M.
 admitted kissing, hugging, and "rubbing bodies" with M.C., but denied that
 he attempted to have intercourse with her, as she claimed.
      In February of 1987, a delinquency petition was filed against P.M.,
 alleging that he engaged in lewd and lascivious conduct with a child under
 the age of sixteen.  In a motion to dismiss prior to the merits hearing and
 again following the hearing, P.M. argued that he had not committed a delin-
 quent act because 13 V.S.A. { 2602, (FN1) the statute proscribing lewd and
 lascivious conduct with a child under sixteen years, was "not intended to
 prosecute children under the age of 16."  The court denied the motion to
 dismiss, stating,
             Whether or not P.M. could be held criminally responsi-
           ble under { 2602 is irrelevant to the proceeding here.
           It is the act in question which is critical; a delin-
           quent act is an act designated a crime.  The requirement
           of specific intent does not alter the nature of the act
           upon which the definition is predicated.  P.M. would
           have the court equate "delinquent act" with "an act for
           which the juvenile actor could be criminally convicted."
           This would largely frustrate the purposes of Chapter 12,
           Title 33, and contravene the plain meaning [of] the
           statutory definition.
 (Emphasis in original.)
      Following the merits hearing, the court found P.M. guilty of having
 committed a delinquent act.  The court pointed out that the case concerned
 sexual conduct between an adolescent and a child, not between adolescents.
 Based on the age disparity of the participants and other factors, the court
 concluded that P.M. committed acts that would have constituted lewd and
 lascivious conduct had he been in adult court.  P.M. was placed on juvenile
 probation and required to participate fully in and successfully complete a
 sexual therapy and education program.  On appeal, P.M. contends that (1) {
 2602 does not criminalize sexual conduct between two consenting children
 under the age of sixteen, and (2) the trial court erred in prohibiting
 defense counsel from inquiring into allegations that M.C. had falsely
 accused others of engaging in sexual activity with her.
                                     II.
      P.M. first argues that the statute proscribing lewd or lascivious
 conduct with a child under sixteen, { 2602, was intended to punish only
 persons over sixteen; therefore, P.M. was not guilty of committing a
 delinquent act.  We disagree.  Under 33 V.S.A. { 632(a)(3), a "delinquent
 act" is "an act designated a crime under the laws of this state."  13 V.S.A.
 { 2602 makes it unlawful for "a person" to "wilfully and lewdly commit any
 lewd or lascivious act upon or with the body, or any part or member thereof,
 of a child under the age of sixteen years, with the intent of arousing,
 appealing to, or gratifying the lust, passions or sexual desires of such
 person or child."  Under the plain language of the statutory provisions,
 P.M. could be found guilty of having committed a delinquent act.
      P.M., however, argues that unless we construe the term "a person" as "a
 person over sixteen years of age," we must make the following two
 "preposterous" assumptions: (1) the Legislature intended to punish children
 who engage in consensual lewd or lascivious acts with other minors more
 severely than those children who engage in consensual sexual intercourse
 with other minors; and (2) the Legislature intended to make all adolescent
 "petting" a five-year felony.  In support of this contention, P.M. points
 out that when the Legislature enacted { 2602, there was a rape statute in
 place providing that if a person under the age of sixteen "carnally knows" a
 female under age sixteen with her consent, both persons were guilty of com-
 mitting a misdemeanor and could be sent to reform school.  See 13 V.S.A. {
 3202 (repealed in 1977). (FN2) Thus, according to P.M., a broad interpretation
 of the term "a person" in { 2602 would mean that two children engaging in
 consensual sexual intercourse could only have been sent to reform school,
 while two children engaged in "petting" could be sentenced to five years in
 prison for engaging in lewd or lascivious conduct.
      We do not find P.M.'s reasoning to be persuasive.  First, we agree with
 the trial court that the crucial inquiry is whether the act committed is
 designated a crime under a statute, not whether the juvenile could be
 criminally prosecuted under the statute.  P.M. was not prosecuted under {
 2602; rather, he was charged with being a delinquent child.  Thus, the fact
 that the penalty for engaging in lewd or lascivious conduct with a child
 under { 2602 is greater than the penalty given to minors engaging in
 consensual sexual intercourse is irrelevant.  Second, we agree with the
 State that the disparity between the penalties in the two provisions is
 reconciled by recognizing that former { 3202 addressed situations involving
 consensual sexual activity between minors, while { 2602 concerns situations
 where a child is sexually exploited by another person.
      Noting that the Model Penal Code's "Corruption of Minors and Seduction"
 provision imposes liability on a person, regardless of age, who initiates
 sexual contact with a child four or more years younger and under the age of
 sixteen, Model Penal Code and Commentaries { 213.3 comment 2 at 385-86
 (1980), P.M. concedes the desirability of a provision penalizing the
 exploitation of children by experienced adolescents, but claims that { 2602
 is not such a statute and cannot be construed in such a manner.  We believe
 that age differential is an important factor that may and should be
 considered by the trial court.  Here, P.M. is six years older than the
 victim.  In determining what constitutes lewd or lascivious conduct, this
 Court has deferred to common-sense community standards.  State v. Purvis,
 146 Vt. 441, 443, 505 A.2d 1205, 1207 (1985).  Under the facts of this case,
 considering the age disparity of the participants, { 2602 is sufficiently
 certain to inform a person of reasonable intelligence that the conduct
 engaged in by P.M. is proscribed.  Cf. id. at 442-43, 505 A.2d  at 1206-07
 (statute proscribing open and gross lewd or lascivious conduct is
 sufficiently certain to inform a person of reasonable intelligence that
 intentionally exposing oneself from inside home to others outside home
 constitutes a violation of the statute); State v. Roy, 140 Vt. 219, 229-30,
 436 A.2d 1090, 1095 (1981) (whether words "lascivious" and "lewd" are too
 vague to be applicable depends on particular facts presented).
      P.M. insists that construing { 2602 to cover one child's sexual conduct
 with another offends public policy and fairness because the alleged
 perpetrator is a member of the protected class and, in a sense, might also
 be a victim.  In support of this view, P.M. points to Planned Parenthood
 Affiliates v. Van de Kamp, 181 Cal. App. 3d 245, 226 Cal. Rptr. 361 (1986),
 where the court overruled an Attorney General opinion that applied a child-
 abuse reporting law to all sexual activity of minors under age fourteen
 regardless of whether the minors were victims of child abuse or merely
 engaging in voluntary sexual conduct.  In considering whether a child under
 fourteen could be found delinquent for engaging in lewd or lascivious
 conduct with a child under fourteen in violation of California Penal Code, {
 288, the court stated,
             It does not appear that a minor under 14 may be found
           delinquent for violating section 288.  Obviously, the
           typical offender under the section is an adult.  In a
           few cases, however, minors have been found delinquent
           for violating the statute, but the minors have all been
           over 14 and their victims substantially younger. . . .
           In In re James P. (1981) 115 Cal. App. 3d 681, 171 Cal. Rptr. 466, a 15-year-old defendant was adjudicated
           delinquent for lewd conduct involving a 10-year-old
           victim. . . . None of these cases are instructive, as
           they do not involve a minor under 14 as the charged
           criminal actor.
                . . . .

           It is illogical to apply in a bright line fashion
           section 288 to the voluntary sexual conduct among minors
           who happen to fall under the age mandating protection
           from exploitive adults.
 Id. at 274-75, 226 Cal. Rptr.  at 376-77 (emphasis in original).  The court,
 however, added the following footnote:
             We can conceive of a hypothetical, sexually sophis-
           ticated 13-year-old who abuses a much younger child with
           the requisite criminal intent to exploit his or her
           sexual naivete.  Under these circumstances, [the
           reporting statute] may well invoke section 288 notwith-
           standing our foregoing analysis.  The conduct might then
           be reportable as child abuse -- but certainly the
           Attorney General's rule of reporting all under-14
           sexual conduct does not permit a case-by-case analysis
           of the minor's mental state . . . .  The situation of
           the sexually exploitive 13-year-old, however, is
           markedly different from the situation of two 13-year-
           olds acting without the necessary intent to exploit, but
           engaging in sexual behavior on a voluntary, nonexploi-
           tive basis.
 Id. at 276 n.14, 226 Cal. Rptr.  at 377 n.14 (emphasis in original).  We see
 nothing in the California court's reasoning that contradicts our rationale
 here.
      Based on the foregoing analysis, we decline to read a minimum age
 limit for perpetrators into { 2602.  Cf. State v. Edward C., 531 A.2d 672,
 673-74 (Me. 1987) (thirteen-year-old male babysitter who had sexual
 intercourse with eight-year-old girl could be prosecuted for gross sexual
 misconduct under statute prohibiting "a person" from engaging in a sexual
 act with another person not a spouse and under fourteen).  We recognize that
 the purpose of Vermont's juvenile provisions is not to punish juvenile
 offenders, but to provide for the protection and wholesome moral development
 of children who are victims and to provide treatment consistent with the
 public interest for children who have committed delinquent acts.  33 V.S.A.
 { 631(a).  These goals can only be accomplished when children who have
 committed acts offensive to community standards and proscribed by our laws
 are held accountable for their actions so that they can be required to
 participate in appropriate treatment programs.
                                    III.
      P.M. next contends that the trial court erred by not allowing his
 counsel to inquire into allegations that M.C. had falsely accused others of
 engaging in inappropriate sexual conduct with her.  We conclude that any
 error that might have been made was harmless under the circumstances.
      During the merits hearing, defense counsel asked M.C.'s mother whether
 M.C. had ever accused others of sexually exploiting her.  Upon the State's
 objection, the court asked for an offer of proof.  Defense counsel stated
 that M.C. had accused four other people besides P.M., three of the four
 falsely; that there had been no police complaints regarding the incidents;
 and that family members would represent that, to the best of their
 knowledge, false accusations had been made.  The court then stated that it
 would not allow defense counsel to get into that subject matter unless there
 was an offer of proof that would not require the trying of three new cases.
 Nonetheless, when M.C.'s brother was later called as a defense witness, the
 court allowed defense counsel to ask the witness why he believed M.C. would
 make up these kinds of accusations against P.M.  The brother answered,
             I don't know how to explain this.  I just -- she's
           made them to my cousins.  She's made them to my oldest
           cousin.  She's made them to my youngest cousin.  She's
           made them to a little boy at school that she doesn't
           even know.  Why would she make them against [P.M]?  She
           made them against me.  Why would she make them against
           [P.M.]?  I guess --
 The State asked that the answer be stricken, but the court decided to allow
 the answer to remain on the record.
      Inasmuch as P.M. had admitted a certain degree of sexual contact with
 M.C., and the court allowed testimony from M.C.'s brother that M.C. had
 falsely accused others, we conclude, without deciding whether the trial
 court erred, that P.M. suffered no undue prejudice as a result of the
 court's refusal to allow cross-examination of M.C.'s mother concerning
 alleged prior false accusations by M.C.  See In re Estate of Laitinen, 145
 Vt. 153, 159, 483 A.2d 265, 268-69 (1984) (exclusion of evidence is harmless
 if it can be shown that it was admitted at another time or in another form);
 cf.  Dairyland Ins. Co. v. Holder, 641 P.2d 136, 139 (Utah 1982) (exclusion
 of statement was harmless because plaintiff failed to show that introduction
 of excluded testimony would have enhanced its case).
      Affirmed.


                               FOR THE COURT:




                               _____________________________________________
                               Associate Justice


FN1.    { 2602.  Lewd or lascivious conduct with child
  A person who shall wilfully and lewdly commit any lewd or
lascivious act upon or with the body, or any part or member
thereof, of a child under the age of sixteen years, with the
intent of arousing, appealing to, or gratifying the lust,
passions or sexual desires of such person or of such child,
shall be imprisoned not less than one year nor more than
five years.

FN2.    { 3202.  Rape by person under sixteen
  If a person under the age of sixteen years unlawfully and
carnally knows a female person under the age of sixteen
years with her consent, both persons shall be guilty of a
misdemeanor, and may be committed to the Weeks school.  A
person under the age of sixteen years who unlawfully and
carnally knows any female person by force and against her
will shall be punished as provided in section 3201 of this
title.

-----------------------------------------------------------------------------

                               DISSENTING


NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 88-380


 In re P.M., Juvenile                         Supreme Court

                                              On Appeal from
                                              District Court of Vermont,
                                              Unit No. 3, Orleans Circuit

                                              March Term, 1990

 Joseph J. Wolchik, J., on motion to dismiss
 Shireen Avis Fisher, J., at merits hearing

 Jane Woodruff, Orleans County State's Attorney, Newport, and Gary S.
   Kessler, Resource Attorney, and Pamela Hall Johnson, Department of State's
   Attorneys, Montpelier, for plaintiff-appellee

 Walter M. Morris, Jr., Defender General, and William A. Nelson, Appellate
   Defender, Montpelier, for defendant-appellant


 PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


      DOOLEY, J., dissenting.   P.M. was adjudicated a delinquent because, at
 the age of fourteen, he engaged in conduct with an eight-year-old girl that
 the trial court determined to be "lewd or lascivious."  13 V.S.A. { 2602
 defines the crime upon which this delinquency proceeding is based, as
 follows:
           A person who shall wilfully and lewdly commit any
         lewd or lascivious act upon or with the body, or any
         part or member thereof, of a child under the age of
         sixteen years, with the intent of arousing, appealing
         to, or gratifying the lust, passions or sexual desires
         of such person or of such child, shall be imprisoned not
         less than one year nor more than five years.

 P.M. argued, both before the juvenile court and here, that he had not
 committed a criminal act because the statute was not intended to cover
 perpetrators under the age of sixteen.  The trial court rejected the claim,
 noting "the ages and the relative positions of the two children."  The
 majority affirms because it finds that the age differential can be
 determinative when combined with other factors.  I conclude that the
 majority has created a new crime, which is not contained in the statute and
 cannot be fairly ascertained by those charged with it.  Accordingly, I
 respectfully dissent.
      I agree with the majority's assertion that "[u]nder the plain language
 of the statutory provisions, P.M. could be found guilty of having committed
 a delinquent act."  Despite the lure of the "plain language," we must
 concede, as the majority does, that the statute cannot be construed as
 proscribing all sexual contact between juveniles.  The main reason is the
 presence of another statute which existed contemporaneously with 13 V.S.A. {
 2602 and provided, in part:
         If a person under the age of sixteen years . . .
         carnally knows a female person under the age of sixteen
         years with her consent, both persons so offending shall
         be deemed guilty of a misdemeanor and may be committed
         to the [reform] school.

 13 V.S.A. { 3202 (repealed in 1977).
      Under a strict "plain language" analysis of the two statutes, a
 fifteen-year-old boy and a fifteen-year-old girl who engaged in consensual
 sexual intercourse were guilty of a misdemeanor, while children of the same
 age who engaged merely in consensual touching (i.e., "petting") were guilty
 of a felony facing up to five years imprisonment.  While we generally
 interpret a statute in accordance with its plain meaning, there are
 occasional circumstances where we must reject the plain meaning.  See
 Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47, 49, 527 A.2d 227, 228 (1986)
 ("although application according to the plain language is preferred when
 possible, the letter of a statute or its literal sense must yield where it
 conflicts with legislative purpose").  This is one of those circumstances.
 Where two statutes concern the same subject matter, they are in pari materia
 and must be construed together.  See, e.g., Blundon v. Town of Stamford, 1
 Vt. L.W. 181, 182 (1990).  We cannot construe two criminal statutes together
 so as to impose a greater penalty on less culpable conduct.  See, e.g.,
 State v. Watson, 138 Vt. 276, 280-81, 413 A.2d 806, 808 (1980) ("it is clear
 that the statutes cannot logically stand together. . . . [Viewed together]
 we would be led to the inescapable conclusion that, in the context of the
 same criminal act, the less culpable the state of mind possessed by a
 defendant, the greater his crime, and vice versa.").
      It is important to recognize that the failure of the plain meaning
 approach distinguishes this case from many others involving similar
 statutes.  Thus, in State v. Edward C., 531 A.2d 672, 673-74 (Me. 1987),
 cited by the majority, the court declined to read a minimum age for
 perpetrators into a lewd or lascivious act statute because there was no
 reason to reject the plain and unambiguous meaning of the statute.  See
 Matter of Pima County Juvenile Appeal No. 74802-2, 164 Ariz. 25, __, 790 P.2d 723, 731 (1990); In re Paul C., 221 Cal. App. 3d 43, 270 Cal. Rptr. 369
 (1990).
      Once we reject the plain meaning approach, the most logical way to
 reconcile the presence of the two statutes is to hold, as defendant argues,
 that the lewd or lascivious act statute does not apply to perpetrators who
 are themselves under sixteen years of age.  The majority adopts an
 alternative that "the disparity between the penalties on the two provisions
 is reconciled by recognizing that former { 3202 addressed situations in-
 volving consensual sexual activity between minors, while { 2602 concerns
 situations where a child is sexually exploited by another person."  I might
 accept the alternative if I could find support for it anywhere in the
 statute.  Unfortunately, there is absolutely nothing in the language of {
 2602 to limit culpability for "lewd or lascivious conduct . . . upon a
 child under the age of sixteen years" to behavior which somehow evinces
 sexual exploitation.  Nor can the statute be read to exclude situations
 involving consensual sexual activity between minors. (FN1)
      In an effort to construe the statute as proscribing some but not all
 sexual conduct between juveniles, the majority endorses the trial court's
 laundry list of factors focused on the relative positions of the parties:
 P.M.'s "age, his own responsibility, and his recognition of [the victim's]
 vulnerability."  We have consistently held that whether behavior is "lewd
 or lascivious" turns on the type of conduct involved, not on an ad hoc
 balancing of the relative positions of the parties or on indicia of some
 unspecified level of exploitation.  See, e.g.,  State v. Purvis, 146 Vt.
 441, 443, 505 A.2d 1205, 1207 (1985) (statute sufficiently certain to inform
 reasonable person that "this type of conduct is proscribed") (emphasis
 added); State v. Roy, 140 Vt. 219, 229, 436 A.2d 1090, 1095 (1981) (same).
 The problem here is not that the terms "lewd" and "lascivious" are
 themselves vague, but that, under the majority's approach, the same acts are
 punishable when performed by one minor but not another.  When a prosecutor,
 a trial court, and ultimately a majority of the members of this Court find
 the age differential between the participants sufficient or find the
 presence of "exploitation" (without defining that concept) -- in short, when
 their sensibilities are sufficiently offended by the conduct -- they are
 willing to find delinquency, but otherwise not. (FN2) This is far too amorphous
 a standard on which to ground an adjudication of juvenile delinquency.  See
 In re R.B., 134 Vt. 368, 369, 360 A.2d 77, 78 (1976) (juvenile proceedings
 require all constitutional guarantees associated with traditional criminal
 prosecutions).
      The void-for-vagueness doctrine "requires that penal statutes define a
 criminal offense with sufficient certainty so as to inform a person of ordi-
 nary intelligence of conduct which is proscribed, and such that arbitrary
 and discriminatory enforcement is not encouraged."  State v. Cantrell, 151
 Vt. 130, 133, 558 A.2d 639, 641 (1989); see also Kolender v. Lawson, 461 U.S. 352, 357 (1983).  I am unable to see how { 2602, as read by the
 majority, overcomes these difficulties:  it both fails to inform reasonably
 intelligent people of proscribed conduct and invites arbitrary enforcement.
 Due process requires more.
      I think it also relevant that the State wholly fails to respond to
 P.M.'s vagueness claim.  In its brief, the State concedes:  "Granted there
 are and will be situations in which children of approximately the same age
 participate in sexual exploration without any exploitation involved.  How-
 ever, whether a person is charged under 13 V.S.A. { 2602 is a matter of
 prosecutorial discretion."  Discretion to prosecute persons who have
 committed crimes is one thing; prosecutorial discretion to decide whether
 conduct is criminal in the first instance is another.  The latter invites
 arbitrary enforcement and contravenes the separation of powers inherent in
 our constitutional government.  Vt. Const. ch. II, { 5.  See Sheriff,
 Washoe County v. Sferrazza, ___ Nev. ___, ___, 766 P.2d 896, 897 (1988)
 (statute requiring "immediate" reporting of suspected child abuse held
 unconstitutionally vague where "prosecuting authorities [have] unbridled
 discretion to determine whether a report of suspected child abuse was made
 quickly enough to satisfy the mandate" of the statute).
      I agree with the majority that it is desirable for the state to
 penalize the exploitation of children by experienced adolescents.  There are
 numerous models for this kind of law.  The Model Penal Code suggests one
 avenue for legislative action, penalizing sexual contact where there is a
 significant age differential between the youths.  Model Penal Code {{
 213.3(1)(a), 213.4(6) (1980). (FN3) Other jurisdictions have adopted statutes
 along these lines. See, e.g., N.Y. Penal Law {{ 130.30, 130.55 (McKinney
 1987); Wash. Rev. Code Ann. {{ 9 A. 44.073 - 089 (1991).  These are models,
 however, for legislative, and not judicial, action.  The desirability of
 legislation in an area is never grounds for us to adopt it by fiat.
      In the absence of action by the legislature, I would limit the prohi-
 bition of { 2602 to perpetrators of age sixteen and over.  See State v.
 Downey, 476 N.E.2d 121, 123 (Ind. 1985) (court may cure unconstitutional
 vagueness by giving statute "a narrowing construction to save it from
 nullification, where such construction does not establish a new or different
 policy basis and is consistent with legislative intent").  Accordingly, I
 dissent.  I am authorized to state that Justice Morse joins in this dissent.




                                         Associate Justice



FN1.    The majority also relies on the ground that the crucial inquiry is
whether the act committed is designated a crime under a statute, not whether
the juvenile could be held criminally responsible under the statute.  Even
if I accept it, this analysis leaves unaddressed the fundamental question --
whether the act constitutes lewd or lascivious conduct -- and offers no
support for the conclusion that P.M.'s act was tantamount to a violation of
{ 2602.

FN2.    Other jurisdictions have adopted provisions specifically addressing
the age differential between perpetrator and victim and the exploitative
nature of the act.  See, e.g., Wash. Rev. Code Ann. { 9 A. 44.093 (1990)
(proscribing sexual contact with a person at least sixteen years old but
less than eighteen years old "if perpetrator is at least sixty months older
than the victim, is in a significant relationship to the victim, and abuses
a supervisory position within that relationship in order to engage in sexual
contact with the victim").

FN3.    { 213.4(6) provides:
     A person who has sexual contact with another not
his spouse, or causes such other to have sexual contact
with him, is guilty of sexual assault, a misdemeanor,
if:
. . .
the other person is less than [16] years old and the
actor is at least [four] years older than the other
person.
     Brackets in original indicate that the adoptive state may choose the
appropriate age limitations.