dissenting. Ignore the defendant’s age in this case and most of the problems with the majority’s decision disappear. Pretend that the defendant was not eight years old when these “serial rapes” were committed and the outcome— probation — appears so mild as to invite outrage. But, focus on the defendant’s age and the issue becomes, “did the defendant have criminal intent?” An ancillary question might be, “could the defendant have had criminal intent?”
*395This case was originally filed becausé the “appellee showed no remorse for the rapes.” To have remorse, a person must understand the nature and consequences of the wrong. I cannot seriously believe that an eight-year-old child intended to commit a rape and then callously ignored the consequences.
It appears from the facts that the parents attempted to resolve this problem. Somehow, in a manner that defies explanation, the problem turned into a court case and is now before this state’s highest court. Perhaps I am missing something, but this strikes me as a scenario out of a Franz Kafka novel.
The majority’s reasoning hinges on a reading of R.C. 2907.01(A) that overrules earlier case law which raised a rebuttable presumption that a child under the age of puberty was not capable of committing a rape. The majority apparently finds that when the legislature revised the statute, it intended to broaden the class of potential rape defendants to include young children.
I am satisfied that the focus in this case should be the requisite intent of a defendant. R.C. 2907.02(A)(2) defines rape, in part, as “sexual conduct with another where the offender purposely compels the other person to submit by force or threat of force.” There is no showing that the defendant “intended” to have “sexual conduct” with his eight-year-old victims. The child admitted what he did, but nowhere in the facts is there any suggestion that he knew that what he was doing amounted to “sexual conduct.” Absent some showing that the defendant had an appreciation of the sexual nature of his conduct, how is it possible to find him guilty of this charge?
Furthermore, the statute requires that the act be committed by “force or threat of force.” There is no evidence in the record that the defendant used either. While there is evidence that the girls were “afraid” of the defendant and his twelve-year-old accomplice, and that the twelve-year-old threatened the girls after the “rapes,” there is no evidence that force or the threat of force was employed before the “rapes” occurred. Similarly, there is no evidence that the appellee employed any force or threat before or after the “rapes.” The majority notes that the appellee did not help the girls when they were threatened. I am at a loss about what the majority would have the eight-year-old do to the threatening twelve-year-old.
'The majority overturns Williams v. State (1846), 14 Ohio 222, and Hiltabiddle v. State (1878), 35 Ohio St. 52, on the grounds that both are relics of an era when emission of semen was an element of rape. While it is true that that element has been supplanted by the rule of mere penetration, there is no support cited for the contention that the change was intended to sweep pre-pubescent children into the ambit of the revised statute.
It would be wiser, on these facts, to refrain from overruling a precedent that protects an eight-year-old child from being labeled a serial rapist. This is an *396issue better suited to legislative examination than judicial fiat. Respectfully, I dissent.
Pfeifer, J., concurs in the foregoing dissenting opinion.