dissenting. I cannot agree that the issue of consent was no part of this case. The court’s failure to instruct the jury on the defense of consent violated the defendant’s right of due process and put him at risk of being convicted of acts beyond the reach of the law.
At the time these events occurred, General Statutes § 53-21, despite its language, could not criminalize sexual activities with a consenting fifteen year old. State v. Perruccio, 192 Conn. 154, 166, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984). Due process requires that the defendant be informed of the nature and cause of the accusation against him; State v. Newton, 8 Conn. App. 528, 536, 513 A.2d 1261 (1986); and the statute with its Perruccio gloss constituted notice of prohibited activities. I find nothing in the record, however, to show that the state prosecuted its case in compliance with the Perruccio limitation.1 The jury could not have known from *461the state’s case or the court’s instructions that consensual sexual activity on the day before the victim turned fifteen was a crime, but that the same act was no crime at all on the following day.
The state did not treat as relevant the fact that the victim turned fifteen years old on January 10, 1984, and was, therefore, for some months, old enough to consent to the sexual activities. The state could have, but did not, limit the charge to the months before January, 1984, the period during which the victim was legally incompetent to consent. The state could have, but did not, establish that even one incident occurred before January 10,1984. The victim was unable to state the dates, or even the years, of particular events and testified only that the incidents took place between August 27, 1982, and May, 1984.
Moreover, the state did not establish that any incident occurred without the victim’s consent despite evidence to the contrary. The victim admitted that she was never subjected to threats or physical force. She did not refuse the defendant’s sexual advances or call for help even when family members were nearby in the house. She willingly allowed the defendant into her house when she was home alone, and she accepted gifts of money from him after some of the incidents. The activities ended immediately once the victim “decided to put a stop” to them by objecting.
The state acknowledges that the defendant, had he so requested, would have been entitled to a jury instruc*462tion on the defense of consent! See State v. Perruccio, supra; State v. Apostle, 8 Conn. App. 216, 248, 512 A.2d 947 (1986). Although the defendant neither requested the instruction nor objected to the charge as given, the trial court must give a consent instruction when, viewed in the light most favorable to the defendant’s claim; State v. Fuller, 199 Conn. 273, 279, 506 A.2d 556 (1986); State v. Webley, 17 Conn. App. 200, 204, 551 A.2d 428 (1988); the words or conduct of the complainant under all the circumstances would justify a reasonable belief that the victim had consented. State v. Smith, 210 Conn. 132, 141, 554 A.2d 713 (1989).
If the evidence indicates that a recognized defense is available, “a defendant is entitled as a matter of law to a theory of defense instruction.”2 State v. Webley, supra. I find that the evidence, necessarily viewed in the defendant’s favor, raised at trial the issue of the victim’s consent. Once raised, the state bore the burden of proving lack of consent beyond a reasonable doubt; State v. Smith, supra, 141; State v. Preyer, 198 Conn. 190, 199, 502 A.2d 858 (1985); and the court then had the obligation to instruct the jury in accordance with the statute’s limiting gloss.
*463The majority finds that the evidence overwhelmingly supported the verdict. Even if this were so, a review of the sufficiency of the evidence does not reach the heart of the defendant’s claim that the statute was unconstitutionally vague. A vagueness claim posits that although the jury did find sufficient evidence, the verdict is suspect because the statutory standards were overbroad. "The gist of a vagueness claim ... is that due process is violated whenever sufficient evidence of guilt is too readily found by a jury that is left to its own discretion . . . .” State v. Schriver, 207 Conn. 456, 458-59 n.3, 542 A.2d 686 (1988) (comparing vagueness and sufficiency claims).
This court should not assume that the jury’s verdict would have been the same had the questions of age and consent been clearly before it. The state’s failure to present relevant evidence and the absence of proper instructions from the court so prejudiced the defense as to call into question the fundamental fairness of the trial! See State v. Newton, supra (improper charge under § 53-21 deprived defendant of opportunity to mount defense and was due process violation). The jury here was instructed that it had to find, beyond a reasonable doubt, that the defendant committed at least one of the acts charged with a victim younger than sixteen. The jury was not instructed to consider whether that act or acts occurred when the victim was fifteen, and, if so, whether she consented. Because the jury could have impermissibly convicted the defendant for consensual sexual activities with a fifteen year old, I would find § 53-21 to be unconstitutionally vague as applied.
Accordingly, I dissent.
The record indicates that the state did not realize, at least at first, that at the time of the alleged activities the age of consent was fifteen years. The original information charged the defendant with first and second degree sexual assault and with two counts of risk of injury to a child. Between October, 1987, and May, 1988, the state filed two substituted informations charging the defendant with multiple counts of first and second degree sexual assault and risk of injury. In these three informations, the state did not quote the statute in effect at the time of the incidents, wherein the age of consent was fifteen years, but quoted the current version of the second degree sexual assault statute; General Statutes (Rev. to 1985) § 53a-71 (a) (1); wherein the age of consent is sixteen years.
One count of first degree sexual assault was dropped when the victim could not state with confidence that the attempted sexual intercourse *461occurred after August 27,1982. The remaining counts of first and second degree sexual assault were dismissed for multiplicity on the defendant’s motion. The third and final substituted information charges only two counts of risk of injury.
Nothing in the record indicates when, if ever, during the trial the state realized that there existed a statutory anomaly regarding ages of consent that required the application of the Perruccio gloss to the charged crimes.
I note that language in State v. Torrice, 20 Conn. App. 75, 564 A.2d 330 (1989), apparently provides support for the state’s contention that the trial court need not instruct the jury on a defense absent a request for a charge. “Although it is generally true that a defendant is entitled to an appropriate defense instruction when it is warranted by the evidence . . . our Supreme Court has expressly stated that the trial court does not have a constitutional duty to instruct on a defense sua sponte.” (Citation omitted.) Id., 83. This statement references State v. Preyer, 198 Conn. 190, 198 n.9, 502 A.2d 858 (1985), in which the Supreme Court imposes the limitation only on affirmative defenses. The court explicitly distinguished affirmative defenses, for which the defendant bears the burden of proof, from other defenses such as justification or self-defense. Because consent, like alibi, is not an affirmative defense under the sex offense statutes, the state bears the burden of proving lack of consent beyond a reasonable doubt whenever the issue is raised, and the court must so instruct the jury. State v. Smith, 210 Conn. 132, 140, 554 A.2d 713 (1989).