(dissenting). I agree with the Juvenile Court judge *229that neither the elements of the crime charged, nor the facts as alleged by the complainant, meet the statutory prerequisites for a youthful offender adjudication: that the “offense . . . involve[] the infliction or threat of serious bodily harm.” See G. L. c. 119, §§52 and 54. Expanding on the clear language of the statute to include troubling cases such as this one is the function of the Legislature, not the Judiciary. Therefore, I respectfully dissent.
The majority opinion concludes that “[t]he current statute makes no provision for review of a prosecutor’s decision to try the juvenile as an adult,” except for any “error of law.” Ante at 223-224.1 believe that this conclusion is simply wrong. The issue is not whether the prosecutor made an error of law, but, rather, whether the indictment brought before the court is so deficient that it must be dismissed.
As a general matter, on a defendant’s motion, judges are empowered to review any indictment brought before them and, if they find the indictment is legally insufficient to support a conviction, to dismiss it. Nothing in the relevant statutory language deprives the judge of this power in the context of youthful offender adjudications. The fact that the statute does not expressly provide for such review in no way indicates a legislative intent to prohibit it.
Under G. L. c. 119, § 54, the Commonwealth can either proceed against the juvenile under a complaint for delinquency, or seek to indict the juvenile as a youthful offender. By statute, the adjudication of a delinquency complaint is not a criminal proceeding. G. L. c. 119, §§ 53 and 74. The return of a youthful offender indictment transforms the proceeding into a criminal one. Absent the “threat or infliction of serious bodily harm,” the conduct this juvenile is charged with does not qualify him as a youthful offender, and, therefore, is not criminal. “[Ijf an indictment fails to state a crime, no court has jurisdiction to entertain it.” Commonwealth v. Cantres, 405 Mass. 238, 239-240 (1989), citing Commonwealth v. Andler, 247 Mass. 580, 581-582 (1924). Whether the Commonwealth is proceeding on an indictment which is legally deficient is a question of law for the judge to decide.
In deviating from these well-settled principles the majority announces that, henceforth, the only relevant inquiry for a judge, when ruling on a motion to dismiss, is whether the prosecutor *230has made an “error of law.”1 The error of law standard is well known, but its use in the present context is somewhat novel. How this new application of the standard operates is not explained, nor does it appear that it is even applied by the majority to the case at bar. I see no error in the judge’s undertaking review of the indictment as he did and would not endorse the “error of law” standard announced by the court today.2
I also agree with the judge’s conclusion that the indictment had to be dismissed. The elements of statutory rape do not include the infliction or threat of serious bodily harm in violation of law. See G. L. c. 265, § 23.3 But the only circumstance arguably applicable in this case that would support a youthful offender indictment would be if “the offense . . . involve[ed] the infliction or threat of serious bodily harm.”4 Consequently, where the crime charged does not satisfy the statutory precondition for a youthful offender indictment there was no error in dismissing the indictment.
The majority reasons that the facts of the individual case, not the elements of the particular offense, determine whether a youthful offender indictment is proper. See ante at 225-226. The *231statute is at best ambiguous on this point. Requiring judges to make case-specific assessments of the facts will add a great burden on them, and make their jobs much more difficult. However, even assuming that this is the correct approach, the record does not reveal, nor does the majority opinion itself discuss, any specific facts in this case which demonstrate that “serious bodily harm,” as contemplated by our criminal law, and required for adjudication as a “youthful offender,” was either threatened or inflicted.5
Because adjudication as a youthful offender exposes the juvenile to adult criminal sentences, see G. L. c. 119, § 58, the statutory provisions relating to “youthful offenders” are properly classified as penal. “Since the statute is penal in nature, it must be strictly construed.” Commonwealth v. Federico, 354 Mass. 206, 207 (1968). See Commonwealth v. Ruiz, 426 Mass. 391, 394 (1998) (criminal statutes strictly construed against Commonwealth); Commonwealth v. Perry, 391 Mass. 808, 813 (1984) (same). Within the criminal law, “bodily harm” connotes physical injury. See generally Commonwealth v. Travis, 408 Mass. 1, 10 (1990); Commonwealth v. Burke, 390 Mass. 480, 482-483 (1983). There is nothing in the statute to indicate that anything beyond this common understanding of bodily harm was intended. Furthermore, to the extent the statute is seen as ambiguous regarding what qualifies as bodily harm, “the defendant is given the benefit of [that] ambiguity.” Commonwealth v. Wotan, 422 Mass. 740, 742 (1996). While the conduct alleged is clearly offensive, there is no evidence that “serious bodily harm,” within the meaning of G. L. c. 119, §§ 52 and 54, i.e., some physical injury, was either inflicted or threatened.
The facts of this case are troubling. However, “the words of the statute cannot be stretched beyond their fair meaning in order to relieve against what may appear to be a hard case.” Grove Hall Sav. Bank v. Dedham, 284 Mass. 92, 96 (1933). I feel that the judge’s interpretation of § 54 was correct and would affirm his order.
The conclusion that this is the proper standard of review for a judge to apply seems to flow from the belief that some form of transfer still occurs, with the prosecutor instead of the judge deciding whether or not to transfer the juvenile: “[t]he Legislature clearly intended to authorize the transfer of youth- . fui offenders on an indictment sought by the prosecuting attorney without the transfer hearing required under the former procedure.” Ante at 223. But the transfer system no longer exists. Whether the majority’s reference to transfer is simply a poor choice of words, or evidence of a fundamental misunderstanding of the juvenile justice system, is unclear.
The issue of whether or not a judge has the authority to review youthful offender indictments was neither raised nor argued by the parties. I question whether it is appropriate for the court to decide this case, even in part, on an issue which neither side was given the opportunity to address. If this unanticipated issue is important enough to warrant such a pivotal role in the court’s ruling, notions of fundamental fairness would seem to require that the parties at least be given the opportunity to brief the issue.
Section 23 states in part: “Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under sixteen years of age shall . . . .”
General Laws c. 119, § 52, defines “[yjouthful offender” as “a person who is subject to an adult or juvenile sentence for having committed, while between the ages of fourteen and seventeen, an offense against a law of the commonwealth which, if he were an adult, would be punishable by imprisonment in the state prison, and . . . has committed an offense which involves the infliction or threat of serious bodily harm in violation of law . . . .”
One can easily hypothesize cases where an incident of statutory rape raises the threat or infliction of serious bodily harm; however, such hypotheticals are not this case.