dissenting:
Having written the opinion of the court after the original hearing of this case, see In re L.A.G., D.C.App., 396 A.2d 981 (1979), which, upon rehearing, the division now overturns, I feel constrained to further explicate the views I expressed in that opinion.
By its holding in this case, the present majority opinion further extends the antiquated requirement of independent evidence to corroborate the testimony of a complaining witness. This is done in spite of our recognition of a long history of dissatisfaction with the corroboration doctrine. See In re J.W.Y., D.C.App., 363 A.2d 674, 677 (1976); Arnold v. United States, D.C.App., 358 A.2d 335, 342-44 (1976) (en banc). This dissatisfaction led us to hold in Arnold that in prosecutions for rape or its lesser-included offenses, corroboration is no longer required where the victim is a mature female. Subsequent to our decision in Arnold, the United States Court of Appeals, District of Columbia Circuit, abrogated the requirement of corroboration in sex offenses totally in trials in the federal courts of this circuit. United States v. Sheppard, 186 U.S.App.D.C. 283, 569 F.2d 114 (1977). Since, in conscience, I am unable to join in the backward step being taken by the present opinion of this court, I dissent.
The starting point in an analysis of the issue presented in this case must begin with, consideration of the law of simple assault. An assault has been defined as “an attempt with force or violence to do a corporal injury to another; and may consist of any act tending to such corporal injury, accompanied with such circumstances as denote at the time an intention, coupled with the present ability of using actual violence against the person.” Patterson v. Pillans, 43 App.D.C. 505, 506-07 (1915) quoting Hays v. People, 1 Hill 351 (N.Y.). It is this definition which outlines the crime of assault interdicted by D.C.Code 1973, § 22-504. Anthony v. United States, D.C.App., 361 A.2d 202, 204 (1976); Harris v. United States, D.C.App., 201 A.2d 532, 534 (1964); Guarro v. United States, 99 U.S.App.D.C. 97, 99, 237 F.2d 578, 580 (1956); Beausoliel v. United States, 71 App.D.C. 111, 114-15 n.14, 107 F.2d 292, 295-96 n.14 (1939). In essence, the offense of simple assault under our statute is defined as that offense was defined at common law. Thus, among the elements to be proven is an attempt to do corporal injury to another with force and violence. These words have particular and specific legal meaning as distinguished from their usage in layman’s parlance. For as we have said: “Nevertheless, ‘violence’ in its ordinary meaning is not a necessary element of assault, for an attempt to do unlawfully to another any bodily injury however small constitutes an assault.” Harris v. United States, supra at 534. The essence of the offense of assault is thus an intentional and unwelcomed touching. See generally W. LaFave & A. Scott, Jr., Handbook on Criminal Law §§ 80-82 (1972).
*693Forty years ago, the United States Court of Appeals for this circuit had occasion to consider the offense of simple assault in the context of a nonconsensual heterosexual touching. Beausoliel v. United States, supra. In sustaining a conviction for simple assault, where a man induced a female child, by fear, to fondle his penis, the court stated that our assault statute made criminal the taking of
improper liberties with the person of a female, without her consent . Every female has a “right to absolute security against any attempt to violate her person.” [cite omitted] The attempt need not be made violently, insolently or in anger. . . . Hence, to stand in proximity to a young girl in a state of indecent exposure with intent to ravish has been held to be an assault. Hays v. People, 1 Hill N.Y. 351. . . . And, again, it was held to be an assault to sit on the bed of a girl and lean over her with a proffer of sexual intercourse [footnotes containing citations omitted].
* * * * * *
In a case such as the present, threat or danger of physical suffering or injury in the ordinary sense is not necessary. The injury suffered by the innocent victim may be the fear, shame, humiliation, and mental anguish caused by the assault.” [71 App.D.C. at 115-16, 107 F.2d at 296-97.]
Thus, to repeat, the essence of an assault was defined to be an intentional and unwel-comed touching.
At the time Beausoliel was decided, the requirement of corroboration for the testimony of the prosecutrix in a sex offense case was well engrained in the law of the District of Columbia. See, e. g, Kidwell v. United States, 38 App.D.C. 566 (1912); Lyles v. United States, 20 App.D.C. 559 (1902). The general evolution of this doctrine has been elucidated in our prior opinions and need not be repeated here. Significantly, in defining assault in the context of the facts presented in Beausoliel, the court made absolutely no reference to any corroboration requirement.
In the decade of the 1950’s, the courts of this jurisdiction began to be confronted with cases where male undercover police officers arrested other males for homosexual solicitation or related offenses. In response thereto, the courts evolved special proof requirements because of the court’s perception of the unique nature and circumstances of the offense. Thus, in Kelly v. United States, 90 U.S.App.D.C. 125, 194 F.2d 150 (1952), a prosecution for an invitation to sodomy, the court found “that testimony asserting sodomy must be subjected to the most careful scrutiny.” Id. at 128, 194 F.2d at 153. Quoting Blackstone, the court stated:
What has been here observed, especially with regard to the manner of proof, which ought to be more clear in proportion as the crime is the more detestable, may be applied to another offense, of a still deeper malignity; the infamous crime against nature, committed either with man or beast. A crime which ought to be strictly and impartially proved, and then as strictly and impartially punished. But it is an offense of so dark a nature, so easily charged, and the negative so difficult to be proved, that the accusation should be clearly made out: for, if false, it deserves a punishment inferior only to that of the crime itself. [Id., quoting 4 Blackstone, Commentaries 215.]
In my prior opinion for the court in this case, I traced the development of the special proof requirements in homosexual solicitation and assault cases from Kelly through such cases as Guarro v. United States, supra, and Konvalinka v. United States, D.C.Mun.App., 162 A.2d 778 (1960). See In re L.A.G., supra at 982-83. As there stated:
Special proof requirements are usually invoked depending on the relative proportion, in human experiences, of two related elements — the likelihood of false accusations compared with the harm of a “guilty” person escaping conviction. See 7 Wigmore, Evidence § 2037 (3d ed. 1940); Kelly v. United States, supra. See generally 7 Wigmore, Evidence §§ 2030-*6942075 (3d ed. 1940 & Supp. 1975); 2 Wharton, Criminal Evidence §§ 486-500 (13th ed. 1972). [Id. at 983.]
Both before and during the period that the Kelly, Guarro, and Konvalinka doctrine was evolving, Beausoliel type assault cases continued to be tried in the trial court and to be reviewed by this court on appeal. See, e. g., Brown v. United States, D.C.Mun.App., 40 A.2d 832 (1945) (corroboration not required for conviction of heterosexual simple assault of a sexual nature on minor female), rev’d on other grounds, 80 U.S.App.D.C. 270, 152 F.2d 138 (1945) (conviction reversed since total evidence of guilt consisted of inadmissible hearsay); Davenport v. United States, D.C.Mun.App., 60 A.2d 226 (1948) (conviction of heterosexual simple assault of a sexual nature requires proof of “not only the touching but that it was unlawful; in other words, that it was not accidental or innocent.” Id. at 226. Conviction reversed because of inadequate “reasonable doubt” instruction); Stitely v. United States, D.C.Mun.App., 61 A.2d 491 (1948) (conviction of heterosexual simple assault of a sexual nature affirmed with no requirement of corroboration). One further case requires particular noting. In Ingram v. United States, D.C.Mun.App., 110 A.2d 693 (1955), the evidence indicated assaultive conduct by males on a female which could form the basis of conviction of simple assault either on the theory of beating and choking or on the Beausoliel theory of a touching of a sexual nature. The defendants were convicted of simple assault. On appeal, the court stated:
Appellants ask us to rule that they were entitled to an acquittal because the testimony of the complaining witness was uncorroborated.1 The first answer is that no rule of law requires corroboration in a case of simple assault.
The present majority bottoms its holding on Konvalinka v. United States, supra, and that opinion’s citation of Wilson v. United States, 106 U.S.App.D.C. 226, 271 F.2d 492 (1959). Konvalinka involved a conviction of simple assault by an adult male where the evidence showed a homosexual fondling of the genitals of a boy. Applying the rationale of Kelly and Guarro and explicitly noting the homosexual nature of the assault, the court held that corroboration was required. I suggest that the support for its holding that the majority seeks from Kon-valinka thus, is misplaced. Likewise, I find no support in Wilson for the majority’s holding. Simply put, Wilson held that where a defendant was charged with an offense of “taking indecent liberties with a child” in violation of D.C.Code 1951, § 22-3501(a), corroboration is required. There was nothing new or different about such a holding. Anything beyond that holding in the Wilson opinion was dictum by which we are not bound. Punch v. United States, D.C.App., 377 A.2d 1353, 1360 (1977), cert. denied, 435 U.S. 955, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978).
The majority draws attention and seeks support for its decision by citing this court’s recent decisions for the proposition that we declined to expand the abrogation of corroboration as enunciated in Arnold. The cases cited bear further mention. In Griffin v. United States, D.C.App., 396 A.2d 211 (1978), a prosecution for homosexual solicitation, a three-member division of this court had no alternative but to follow the precedent of Kelly and thus could not abrogate the corroboration requirement without an en banc panel. M.A.P. v. Ryan, D.C. *695App., 285 A.2d 310, 312 (1972).2 In In re J.W.Y., supra, the court recognized binding precedence mandating corroborative evidence of an immature female’s testimony on a charge of carnal knowledge, see Arnold v. United States, supra, (abrogating requirement only for mature females); Kidwell v. United States, supra, and found ample corroboration to support the conviction. Thus, the court did not need to “decide whether [it] should expand the principles enunciated in Arnold to embrace a prosecution for carnal knowledge.” Id. at 678. Likewise, in Davis v. United States, D.C.App., 396 A.2d 979 (1979), when faced with a conviction for rape of a 17-year-old female, the court held that under Arnold the trial court’s refusal to require corroboration was not error. The court specifically stated that since the prosecution was one of rape perpetrated on a female, “[w]e need not here consider the reach of the additional phrase in the opinion respecting ‘other sex offenses.’ Arnold v. United States, supra at 344. Nor need we deal with corroboration of male sex offense victims.” Davis v. United States, supra at 980 n.1.
Consequently, none of the holdings in these decisions furnishes any support for the present majority’s further extension of the corroboration requirement. The question is not whether we are willing to extend the holding of Arnold, and abrogate the need for corroboration in other sex related cases not dealing with mature females, but rather whether we are willing to extend the corroboration requirement of Konvalinka to include assaults of a sexual nature perpetrated on a female where no prior opinion of this court has so required.
In essence, what the present majority has done by its holding is to create two types of heterosexual simple assaults under one statute, one requiring corroboration and one not. If an intentional, unwelcomed touching of a sexually significant portion of the anatomy is done with enough force and violence — in the layman’s sense of that term — then corroboration is not required. If the touching is of a lesser nature of force, then corroboration is required.3 It takes little imagination to foresee the chaos this distinction is likely to cause for judges, lawyers and jurors. It is well nigh time that we add to the clarity of the law in this area rather than confusing it further. I hope that the en banc court will have an opportunity to do so in due course.
Citing Kelly v. United States, 90 U.S.App.D.C. 125, 194 F.2d 150; Ewing v. United States, 77 U.S.App.D.C. 14, 135 F.2d 633, certiorari denied, 318 U.S. 803, 63 S.Ct. 991, 87 L.Ed. 1167; Kidwell v. United States, 38 App.D.C. 566 [Id. at 694].1
. It is apparent from the opinion of the court in Ingram that although there was evidence of corroboration, no instruction pertaining thereto was given to the jury and the court deemed the failure to give such an instruction proper. This was so even though the evidence was such that the jury may have convicted solely on the Beausoliel theory. If corroboration were required in a Beausoliel type assault, the court would have been required to find the failure to instruct on corroboration to constitute error. It did not do so. It thereby reaffirmed its holding that corroboration is not required, even in a Beausoliel type simple assault. I submit that the majority opinion’s contrary reading of Ingram is simply erroneous.
. Both Griffin and Kelly were cases of homosexual solicitation, and thus Kelly was clearly precedent. The majority, in making this same argument, finds binding precedence for the instant case in Konvalinka. Since Konvalinka was an assault of a homosexual nature requiring corroboration based upon the Guarro and Kelly rationale, I find neither binding precedent nor persuasive authority for requiring corroboration for this assault of a heterosexual nature.
. Without saying so, the present majority, in violation of M.A.P. v. Ryan, supra (decisions of the United States Court of Appeals for the District of Columbia Circuit rendered prior to February 1, 1971, as well as the decisions of this court constitute the case law of the District of Columbia and can only be overruled by this court en banc) overturns our prior holdings in such cases as Ingram v. United States, supra.