(dissenting).
I fail to perceive the essential difference between this statute and the New Hampshire one we held unconstitutional in Meloon v. Helgemoe, 564 F.2d 602 (1st Cir. 1977), cert. denied, 436 U.S. 950, 98 S.Ct. 2858, 56 L.Ed.2d 793 (1978). Both statutes discriminate on the basis of sex. Both punish a male, but not a female, for engaging in consensual sexual intercourse which has been defined under the common law of both states as “penetration, however slight.” Under both statutes, a male under the age of consent who has sexual intercourse with a female of the same age is liable to be convicted of a felony. It is true, of course, that the Maine statute defined the age of consent as fourteen and in New Hampshire *505it was set at fifteen. As the majority recognizes, however, this is a distinction, but not a difference. It is also significant that both Maine and New Hampshire have repealed their sexually discriminating statutes and replaced them with equally effective but sex neutral laws.1 If, then, as the majority candidly states, “the former New Hampshire statutory rape statute invalidated in Meloon varies only slightly in wording and operation” from the Maine statute, what is the explanation for forsaking our teaching in Meloon and embracing the opinion of the Supreme Judicial Court of Maine with open arms?
There are, I suggest, two explanations. The first is that, unlike Meloon where the intercourse was really consensual, here the facts show that the female was overborne by the age of her partner and his status as a teacher in the school she attended. In fact, the evidence adduced at the trial strongly suggests that the defendant, at least the first time, had sexual intercourse with the complainant “by force and against her will.” The case was, however, expressly tried on the theory that consent was neither an issue nor a defense.
The second explanation for the result reached by the majority is that it, like the district court, was seduced by the impressive historical exegesis of the statute by the Chief Justice of the Supreme Judicial Court of Maine. Analysis reveals, however, that the purposes and reasons for the Maine statute as articulated by Maine’s eminent Chief Justice are not based on any expressed legislative intent, but rather on the court’s determination of what that intent would have been if there had been a legislative history to examine. The Maine court goes back to 1669 when Massachusetts passed its first statutory rape law to find the only expressly stated legislative comment: “carnal copulation with a woman childe, under the age of ten years, is . perrilous to the life and well-being of the childe . . . .” State v. Rundlett, 391 A.2d 815, 819 (Me.1978). It then carries this “legislative history” forward over a period of two hundred years to 1889 when the statute involved here was enacted. During that time span, the age of consent was raised from ten to thirteen in 1887, and to fourteen in 1889. There is, however, no recorded legislative comment at all as to the purpose and intent of the statute. It is clear that this statute has no legislative history in the traditional sense, and that the Supreme Judicial Court of Maine has engaged in a singular feat of attribution. By tracing the history of the statute, the Maine court has created its legislative history. One cannot help but be reminded of the observation that “he who writes history makes history.”
The majority accepted Maine’s position that the potential for physical injury to the female, and not the male, justified the statute. It relies heavily on the fact that here, unlike Meloon, the State’s advocate “has offered substantial statistical and medical evidence to support its contention that young females, unlike young males, are often victims of physical injury resulting from a crime that is predominantly committed by males.” While this may be so, although such evidence was not introduced in the district court, my brethren miss the point. There is no indication that the Maine legislature considered any reason or purpose for the statute. As the Supreme Judicial Court of Maine makes clear, the legislature simply followed the example of Massachusetts and copied its statute. State v. Rundlett, supra, 391 A.2d at 820. It *506would appear that at the only time any real thought was given to the statute and its implications, it was replaced by a sexually neutral one.
While I am willing to give due deference to the interpretation that the highest court of a state gives to its own statute, I am not willing to follow it backwards in time and thought to the 19th century when the sexual differences between male and female fostered the almost universally accepted but unproven myth that women were inferior to men in all respects and had to be protected by them and from them.
The same arguments advanced and rebuffed in Meloon are propounded here.
I would reverse on the basis of our analysis in Meloon v. Helgemoe, supra, 564 F.2d 602.
. 17—A M.R.S.A. § 252(1)(A) (Supp.1977): “A person is guilty of rape if he engages in sexual intercourse: A. With any person, not his spouse, who has not in fact attained his 14th birthday . . . .” (emphasis added).
NH RSA 632-A:3: “A person is guilty of a class B felony . . . if he engages in sexual penetration with a person who is thirteen years of age or older and under sixteen years of age.” (emphasis added).
NH RSA 632-A:2: “A person is guilty of a class A felony if he engages in sexual penetration with another person . .
XI. When the victim is less than thirteen years of age” (emphasis added).