dissenting. Because I believe that the statute under which the defendant is indicted is unconstitutional as applied to him, I respectfully dissent.
Unlike the majority, I would reach the defendant’s as-applied challenge. The majority finds “no meaningful difference between [the defendant’s] as-applied and facial challenges” because his “as-applied challenge relies solely upon the language of the indictments, which tracks, nearly exactly, the language of RSA 632-A:2,1(g)(1).” I disagree.
In his motion to dismiss, the defendant asserts that his “prosecution [under the statute] constitutes a violation of his constitutionally protected fundamental right to engage in private consensual sexual conduct with other adults.” (Emphasis added.) No allegations concerning consent or lack thereof are contained in the indictments against him. The majority cites United States v. Riquene, No. 3:10-er-227-J-34TEM, 2012 WL 171080, at *7 n.9 (M.D. Fla. Jan. 20, 2012), for the proposition that “to [the] extent [the defendant’s] as-applied challenge depends upon facts and evidence beyond those given in [the] indictment, it must be denied before trial.” I acknowledge the soundness of that proposition in the great majority of cases. See, e.g., United States v. Pope, 613 F.3d 1255, 1259-60 (10th Cir. 2010) (discussing rule). There are, however, exceptions. See id. at 1260-61. For instance, the United States Court of Appeals for the Tenth Circuit recognized that a district court may “dismiss charges at the pretrial stage under the limited circumstances where the operative facts are undisputed and the government fails to object to the district court’s consideration of those undisputed facts in making the determination regarding a submissible case.” United States v. Hall, 20 F.3d 1084, 1088 (10th Cir. 1994) (dismissal under Fed. R. Crim. P. 12(b)). In United States v. Engstrum, 609 F. Supp. 2d 1227, 1229 n.6 (D. Utah 2009), that exception was used to consider, prior to trial, a motion to dismiss an indictment on grounds that the underlying statute was unconstitutional as applied to the defendant.
In the instant case, the trial court’s order recited the “undisputed fact[]” that the defendant and the complainant “had a consensual sexual relationship in 2008, less than one year after [she] stopped treating with [him].” The State does not explicitly challenge that “undisputed fact[]” on appeal, but *166rather suggests that it is legally irrelevant. The State asserts, for instance, that “the statute does not penalize defendants for engaging in consensual sexual activity. Instead, it penalizes defendants for engaging in what the legislature has deemed nonconsensual sex, an activity to which there is no constitutional right whatsoever.” It also asserts that the State “has a legitimate interest in protecting those who are vulnerable to exploitation because of their inability legally to consent.” (Quotation omitted.)
This position reinforces my conviction that the defendant’s as-applied challenge is now ripe for review because “reserving resolution of the issue could harm the defendant] without presenting the constitutional question more clearly.” United States v. Beckford, 966 F. Supp. 1415, 1423 (E.D Va. 1997). In other words, if lack of consent is not an element of, and actual consent is not a defense to, the crime, evidence related to whether the complainant in fact consented may be deemed irrelevant and inadmissible at trial. “Given that situation, the defendant[] likely would not present [his] theories at trial, and in reserving judgment on the constitutional question, the Court, in effect, would force the defendant[] to undergo prosecution pursuant to a potentially unconstitutional statute without obtaining the benefit of significant clarification of the facts.” Id. Thus, I would consider the merits of the defendant’s as-applied challenge.
The first step of the substantive due process analysis, as the majority notes, is to determine the nature of the right asserted, which then informs the level of scrutiny to apply. See Aime v. Com., 611 N.E.2d 204, 209 (Mass. 1993) (stating that in substantive due process analysis under Federal Constitution, nature of individual interest at stake determines standard of review courts apply). I agree with the United States Court of Appeals for the First Circuit that Lawrence v. Texas, 539 U.S. 558 (2003), “recognize[d] a protected liberty interest for adults to engage in private, consensual sexual intimacy and applied a balancing of constitutional interests that defies either the strict scrutiny or rational basis label.” Cook v. Gates, 528 F.3d 42, 52 (1st Cir. 2008); see State v. Holmes, 154 N.H. 723, 726-27 (2007) (noting that the Lawrence Court ruled “that substantive due process precludes the State from criminalizing private consensual sexual conduct between adults”). The United States Court of Appeals for the Ninth Circuit attempted to give form to that balancing test by adapting the heightened level of scrutiny applied in Sell v. United States, 539 U.S. 166 (2003). Witt v. Department of Air Force, 527 F.3d 806, 819 (9th Cir. 2008). Since that test supplies a useful vehicle for balancing the interests at issue here, I will apply it for purposes of this dissent:
[W]hen the government attempts to intrude upon the personal and private lives of . . . [consenting adults], in a manner that implicates the rights identified in Lawrence, the government must *167advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest.
Id.; cf. Cook, 528 F.3d at 56 (“Lawrence balanced the strength of the state’s asserted interest in prohibiting immoral conduct against the degree of intrusion into the petitioners’ private sexual life caused by the statute in order to determine whether the law was unconstitutionally applied.”).
The State asserts that RSA 632-A:2, 1(g) is part of “a comprehensive statutory scheme that was intended to further the State’s legitimate, if not compelling, interests in protecting persons whose ability to consent to sexual contact may have been compromised by the inherent nature of the treatment relationship, and in maintaining the integrity of the mental health treatment professions.” I will assume for purposes of this dissent that these interests are “important” under the Witt balancing test and that the statute significantly furthers those interests. Witt, 527 F.3d at 819.
I conclude, however, that the statute falters on the third prong. With respect to the interest in maintaining the integrity of mental health professions, I fail to see how this interest cannot be substantially achieved through the less intrusive means of licensing statutes and sanctioning mechanisms of professional boards. See RSA ch. 330-A (2011 & Supp. 2011) (Mental Health Practice).
The more significant interest, in my mind, is that of protecting persons whose ability to consent actually has been compromised by the treatment relationship. The State points to the recognition by other courts of “the increased risk of coercion that flows from the inherent nature of a psychotherapist-patient relationship.” Coercion by the therapist, however, is explicitly criminalized under RSA 632-A:2, 1(g)(2) (2007) (variant of offense containing element that the defendant “[u]ses this position as such provider to coerce the victim to submit”). Thus, the legislature addressed that concern in a section of the statute not involved in this case. Moreover, the State notes that it “informed the [trial] court that it could not bring the charges under ‘any other section of RSA 632-A.-2,’ so ‘the practical effect of the [c]ourt’s [o]rder m[ight] be to bar the State from prosecuting the case.’ ” Apparently, then, coercion by use of the defendant’s position as the complainant’s therapist is not at issue here.
The State also contends that the therapist-patient relationship is one in which “consent might not easily be refused,” Lawrence, 539 U.S. at 578, and thus lies outside the scope of the right recognized in Lawrence. It asserts that “[a]uthorities have recognized that a... therapist-patient relationship *168is just such a relationship because the ... therapist wields power over the patient and could easily exploit his or her vulnerabilities, even after the relationship has ended.”
I acknowledge that the Lawrence Court distinguished the case before it from other situations:
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
Lawrence, 539 U.S. at 578. Nevertheless, I would hesitate to read too much into this dicta, which merely stated what was not before the Court.
It is true that Lawrence did not involve a case where consent was in doubt. Lawrence explicitly said as much: “[The present case] does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” [539 U.S. at 578.] But that distinction does not conclusively decide this case. The Supreme Court was simply making clear what could just as well have gone unsaid — that the Court expresses no view as to issues not before it.
Anderson v. Morrow, 371 F.3d 1027, 1037 (9th Cir. 2004) (Berzon, J., concurring in part and dissenting in part).
To declare all sexual relationships between therapists and their former patients within one year after termination of therapy constitutionally unprotected because some former patients might not easily refuse consent makes an end-run around Lawrence. Instead, the inquiry must start with the premise that adults have “a protected liberty interest... to engage in private, consensual sexual intimacy.” Cook, 528 F.3d at 52. Then, the State’s interest in protecting that subset of adults who may not easily refuse consent to sex with a former therapist must be balanced “against the degree of intrusion into the [defendant’s] private sexual life caused by the statute in order to determine whether the law [is] unconstitutional] [as] applied.” Id. at 56; cf. Paschal v. State, No. CR 11-673, 2012 WL 1034538, at *10-11 (Ark. March 29, 2012) (stating that under state constitution, “[t]he State misapprehends the issue when it asserts that there is no fundamental right for a public high school teacher to have sex with an eighteen-year-old high school student enrolled in that school” and clarifying that “[t]he issue *169is whether the statute, as applied in this case, infringes on [the defendant’s] fundamental right to engage in private, consensual, noncommercial acts of sexual intimacy with an adult”).
The degree of intrusion here is severe: the defendant faces strict criminal liability. The State need not prove that the relationship between the defendant and the complainant actually impaired her ability to refuse consent to the charged sexual contact. See RSA 632-A:2, 1(g)(1) (2007). Rather the legislature has determined that all patients are legally incapable, for an admittedly arbitrary period of one year after the termination of therapy, of consenting to sex with a former therapist. That determination applies whether the patient was in therapy for ten years or one session, whether the sexual relationship began the day after therapy terminated or 364 days after termination. To declare all adult psychotherapy patients legally incapable of consenting to sex with their former therapist because the therapy relationship is one “where consent might not easily be refused,” Lawrence, 539 U.S. at 578 (emphasis added), and in so doing impose strict criminal liability on the therapist even when the “protected” partner was actually capable of giving or refusing consent and did, in fact, freely give it, simply goes too far. Although the issue is not before us, one might wonder about the burden thereby placed upon the rights of the “protected,” but fully capable, partner. Cf. State v. Frost, 141 N.H. 493, 497, 502 (1996) (noting that a “subset of ‘mentally defective’ persons is capable of legally consenting to sexual relations and thus does not require protection,” but finding it unnecessary to reach defendant’s argument that RSA 632-A:2, 1(h), as applied, “violates the [constitutional and statutory] rights of ‘mentally defective’ people”); Anderson, 371 F.3d at 1029,1040-41 (Berzon, J., concurring in part and dissenting in part) (discussing “moderately retarded” adult’s ability to consent to sex in addressing “whether the sexual liberty interest outlined in Lawrence regulates the manner in which a state drafts and applies its statutory rape law as applied to adult victims”).
I cannot conclude that “a less intrusive means [would] be unlikely to achieve substantially the government’s interest.” Witt, 527 F.3d at 819. Accordingly, I conclude that RSA 632-A:2, 1(g)(1) is unconstitutional as applied to the defendant.