dissenting. P.M. was adjudicated a delinquent because, at the age of fourteen, he engaged in conduct with an eight-year-old girl that the trial court determined to be “lewd or lascivious.” 13 V.S.A. § 2602 defines the crime upon which this delinquency proceeding is based, as follows:
A person who shall wilfully and lewdly commit any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of sixteen years, with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of such person or of such child, shall be imprisoned not less than one year nor more than five years.
P.M. argued, both before the juvenile court and here, that he had not committed a criminal act because the statute was not intended to cover perpetrators under the age of sixteen. The trial court rejected the claim, noting “the ages and the relative positions of the two children.” The majority affirms because it finds that the age differential can be determinative when combined with other factors. I conclude that the majority has created a new crime, which is not contained in the statute and *312cannot be fairly ascertained by those charged with it. Accordingly, I respectfully dissent.
I agree with the majority’s assertion that “[u]nder the plain language of the statutory provisions, P.M. could be found guilty of having committed a delinquent act.” Despite the lure of the “plain language,” we must concede, as the majority does, that the statute cannot be construed as proscribing all sexual contact between juveniles. The main reason is the presence of another statute which existed contemporaneously with 13 V.S.A. § 2602 and provided, in part:
If a person under the age of sixteen years . . . carnally knows a female person under the age of sixteen years with her consent, both persons shall be guilty of a misdemeanor, and may be committed to the [reform] school.
13 V.S.A. § 3202 (repealed in 1977).
Under a strict “plain language” analysis of the two statutes, a fifteen-year-old boy and a fifteen-year-old girl who engaged in consensual sexual intercourse were guilty of a misdemeanor, while children of the same age who engaged merely in consensual touching (i.e., “petting”) were guilty of a felony facing up to five years imprisonment. While we generally interpret a statute in accordance with its plain meaning, there are occasional circumstances where we must reject the plain meaning. See Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47, 49, 527 A.2d 227, 228 (1986) (“although application according to the plain language is preferred when possible, the letter of a statute or its literal sense must yield where it conflicts with legislative purpose”). This is one of those circumstances. Where two statutes concern the same subject matter, they are in pari materia and must be construed together. See, e.g., Blundon v. Town of Stamford, 154 Vt. 227,229-30,576 A.2d 437,439 (1990). We cannot construe two criminal statutes together so as to impose a greater penalty on less culpable conduct. See, e.g., State v. Watson, 138 Vt. 276, 280-81, 413 A.2d 806, 808 (1980) (“it is clear that the statutes cannot logically stand together. . . . [Viewed together] we would be led to the inescapable conclusion that, in the context of the same criminal act, the less culpable the state of mind possessed by a defendant, the greater his crime, and vice versa.”).
*313It is important to recognize that the failure of the plain meaning approach distinguishes this case from many others involving similar statutes. Thus, in State v. Edward C., 531 A.2d 672, 673-74 (Me. 1987), cited by the majority, the court declined to read a minimum age for perpetrators into a lewd or lascivious act statute because there was no reason to reject the plain and unambiguous meaning of the statute. See In re Pima County Juvenile Appeal No. 74802-2,164 Ariz. 25, 31, 790 P.2d 723, 731 (1990); In re Paul C., 221 Cal. App. 3d 43, 270 Cal. Rptr. 369 (1990).
Once we reject the plain meaning approach, the most logical way to reconcile the presence of the two statutes is to hold, as defendant argues, that the lewd or lascivious act statute does not apply to perpetrators who are themselves under sixteen years of age. The majority adopts an alternative that “the disparity between the penalties in the two provisions is reconciled by recognizing that former § 3202 addressed situations involving consensual sexual activity between minors, while § 2602 concerns situations where a child is sexually exploited by another person.” I might accept the alternative if I could find support for it anywhere in the statute. Unfortunately, there is absolutely nothing in the language of § 2602 to limit culpability for “lewd or lascivious conduct... upon a child under the age of sixteen years” to behavior which somehow evinces sexual exploitation. Nor can the statute be read to exclude situations involving consensual sexual activity between minors.1
In an effort to construe the statute as proscribing some but not all sexual conduct between juveniles, the majority endorses the trial court’s laundry list of factors focused on the relative positions of the parties: P.M.’s “age, his own responsibility, and his recognition of [the victim’s] vulnerability.” We have consistently held that whether behavior is “lewd or lascivious” turns on the type of conduct involved, not on an ad hoc balancing of the relative positions of the parties or on indicia of some un*314specified level of exploitation. See, e.g., State v. Purvis, 146 Vt. 441, 443, 505 A.2d 1205, 1207 (1985) (statute sufficiently certain to inform reasonable person that “this type of conduct is proscribed”) (emphasis added); State v. Roy, 140 Vt. 219, 229, 436 A.2d 1090,1095 (1981) (same). The problem here is not that the terms “lewd” and “lascivious” are themselves vague, but that, under the majority’s approach, the same acts are punishable when performed by one minor but not another. When a prosecutor, a trial court, and ultimately a majority of the members of this Court find the age differential between the participants sufficient or find the presence of “exploitation” (without defining that concept) — in short, when their sensibilities are sufficiently offended by the conduct — they are willing to find delinquency, but otherwise not.2 This is far too amorphous a standard on which to ground an adjudication of juvenile delinquency. See In re R.B., 134 Vt. 368, 369, 360 A.2d 77, 78 (1976) (juvenile proceedings require all constitutional guarantees associated with traditional criminal prosecutions).
The void-for-vagueness doctrine “requires that penal statutes define a criminal offense with sufficient certainty so as to inform a person of ordinary intelligence of conduct which is proscribed, and such that arbitrary and discriminatory enforcement is not encouraged.” State v. Cantrell, 151 Vt. 130,133, 558 A.2d 639, 641 (1989); see also Kolender v. Lawson, 461 U.S. 352, 357 (1983). I am unable to see how § 2602, as read by the majority, overcomes these difficulties: it both fails to inform reasonably intelligent people of proscribed conduct and invites arbitrary enforcement. Due process requires more.
I think it also relevant that the State wholly fails to respond to P.M.’s vagueness claim. In its brief, the State concedes: “Granted there are and will be situations in which children of approximately the same age participate in sexual exploration *315without any exploitation involved. However, whether a person is charged under 13 V.S.A. § 2602 is a matter of prosecutorial discretion.” Discretion to prosecute persons who have committed crimes is one thing; prosecutorial discretion to decide whether conduct is criminal in the first instance is another. The latter invites arbitrary enforcement and contravenes the separation of powers inherent in our constitutional government. Vt. Const, ch. II, § 5. See Sheriff, Washoe County v. Sferrazza, 104 Nev. 747, 749, 766 P.2d 896, 897 (1988) (statute requiring “immediate” reporting of suspected child abuse held unconstitutionally vague where “prosecuting authorities [have] unbridled discretion to determine whether a report of suspected child abuse was made quickly enough to satisfy the mandate” of the statute).
I agree with the majority that it is desirable for the state to penalize the exploitation of children by experienced adolescents. There are numerous models for this kind of law. The Model Penal Code suggests one avenue for legislative action, penalizing sexual contact where there is a significant age differential between the youths. Model Penal Code §§ 213.3(l)(a), 213.4(6) (1980).3 Other jurisdictions have adopted statutes along these lines. See, e.g., N.Y. Penal Law §§ 130.30,130.55 (McKinney 1987); Wash. Rev. Code Ann. §§ 9A.44.073-9A.44.089 (1991). These are models, however, for legislative, and not judicial, action. The desirability of legislation in an area is never grounds for us to adopt it by fiat.
In the absence of action by the legislature, I would limit the prohibition of § 2602 to perpetrators of age sixteen and over. See State v. Downey, 476 N.E.2d 121,123 (Ind. 1985) (court may cure unconstitutional vagueness by giving statute “a narrowing construction to save it from nullification, where such construction does not establish a new or different policy basis and is *316consistent with legislative intent”). Accordingly, I dissent. I am authorized to state that Justice Morse joins in this dissent.
The majority also relies on the ground that the crucial inquiry is whether the act committed is designated a crime under a statute, not whether the juvenile could be held criminally responsible under the statute. Even if I accept it, this analysis leaves unaddressed the fundamental question — whether the act constitutes lewd or lascivious conduct — and offers no support for the conclusion that P.M.’s act was tantamount to a violation of § 2602.
Other jurisdictions have adopted provisions specifically addressing the age differential between perpetrator and victim and the exploitative nature of the act. See, e.g., Wash. Rev. Code Ann. § 9A.44.096 (1990) (proscribing sexual contact with a person at least sixteen years old but less than eighteen years old “if the perpetrator is at least sixty months older than the victim, is in a significant relationship to the victim, and abuses a supervisory position within that relationship in order to engage in sexual contact with the victim”).
§ 213.4(6) provides:
A person who has sexual contact with another not his spouse, or causes such other to have sexual conduct with him, is guilty of sexual assault, a misdemeanor, if:
(6) the other person is less than [16] years old and the actor is at least [four] years older than the other person.
Brackets in original indicate that the adoptive state may choose the appropriate age limitations.