concurring specially. I concur in the court’s opinion. I write separately, however, to note that this case did not present us with the question, nor does the court’s opinion in this case decide, whether the criminal statute RSA 632-A:3, II (Supp. 2002) would bar the defense of consent in a civil action for rape where the victim was under sixteen years of age at the time of the alleged offense. This court has noted, citing a prior version of RSA 632-A:3, that the statute “fixed the age at which a minor person may consent to sexual intercourse.” Goodrow v. Perrin, 119 N.H. 483, 486 (1979). Courts in other jurisdictions have held similar statutes applicable to both criminal and civil cases. See, e.g., Doe ex rel. Roe v. School Dish No. 2, 518 S.E.2d 259, 262 (S.C. 1999). Because that issue is not before the court, I express no opinion on it, but specially concur simply to point out that it remains an open issue in this State.
Broderick, J., joins in the special concurrence.