dissenting:
I agree that Wilson’s conviction under the Assimilative Crimes Act of a violation of Maryland’s § 464B should not be allowed to stand. He was convicted of an assault with intent to commit rape in violation of 18 U.S.C.A. § 113(a), a greater offense than a third degree sexual offense under the Maryland statute. I think there was preemption there.
I cannot agree, however, that 18 U.S.C.A. § 113 preempted the convictions of Eades under the Maryland statute.
If 18 U.S.C.A. § 113 may be viewed as a generally comprehensive proscription of assaults within the federal maritime and ter*625ritorial jurisdiction, it surely is not a comprehensive federal statute dealing with the particular problem of sexual assaults. It literally proscribes assaults with intent to commit rape, but there is no other reference to sexual offenses. I agree that an aggravated sexual assault would be a violation of 18 U.S.C.A. § 113(e) proscribing simple assault punishable by the imposition of a fine of not more than $300 or imprisonment of not more than three months or both. It seems plain to me, however, that Congress intended in that subsection to deal only with minor offenses and not with aggravated sexual assaults. United States v. Smith, 574 F.2d 988 (9th Cir. 1978), is illustrative. I cannot ascribe to the Congress, in the enactment of § 113(e) dealing with simple assault, an intention to preclude prosecution under the Assimilative Crimes Act for the serious, forceable sodomy offenses of which the three defendants in that case were convicted.
In contrast to § 113 of the federal statute, the Maryland sexual offense statutes deal comprehensively with such offenses. They are classified into six separate degrees. Some acts may be prosecuted under more than one section, leaving prosecutor and jury some room for leniency, but substantial gradations of offenses is surely appropriate to the problem. There are no such gradations under the federal statute.
As the majority notices, Eades could have been convicted of assault by striking in violation of § 113(d) when he banged the victim’s head on the floor, but the sexual offense would be wholly irrelevant to a conviction under that subsection. At most, it could be treated in the sentencing as an aggravating circumstance.
In short, I do not see § 113 as a comprehensive treatment of the problem of sex offenses on federal enclaves. Some sex offenses are serious and widely regarded as felonious, though not assaults with an actual intent to commit rape. I cannot believe that Congress, in enacting a simple assault statute providing punishment appropriate to a minor misdemeanor, could have intended to prohibit prosecution under the Assimilative Crimes Act of serious sex offenses.
I respectfully dissent.