dissenting:
I believe that this case presents serious equal protection and due process problems under N.H. CONST, pt. I, arts. 1, 15. RSA 632-A:3 does not require knowledge of the victim’s minority. This makes it unique under the Criminal Code. There is no rational basis upon which to distinguish this crime from other similar crimes.
For example, RSA 639:1 provides that a person is guilty of the crime of bigamy if, “having a spouse and knowing that he is not legally eligible to marry, he marries another.” (Emphasis added.) Under RSA 639:2, a person is guilty of incest if he “marries or has sexual intercourse . . . with a person whom he knows” to be a relative. *490(Emphasis added.) Acts of fornication, exposure, and gross lewdness are misdemeanors if performed “under circumstances which [the actor] should know will likely cause affront or alarm.” RSA 645:1 (emphasis added). RSA 645:3 also includes knowledge as a requisite element of adultery. A person is guilty of a misdemeanor “if he knowingly endangers the welfare of a child under eighteen.” RSA 639:3 (emphasis added).
These statutes all require scienter for two important reasons. First, the Criminal Code itself makes no distinction between crimes directed at minors or adults. It provides that a person is guilty of a felony or misdemeanor “only if he acts purposely, knowingly, recklessly or negligently ... with respect to each material element of the offense.” RSA 626:21. Culpability is required for an act to become a crime. For example, not all shootings are crimes even if the actor intended to pull the trigger. Depending on the knowledge or intent of the actor, some deaths are accidental and others are first-degree murders.
The majority states that the defendant “intended to have intercourse” with the victim. Nevertheless, the statute involved, unlike all other felonies in the Code which require scienter, does not require that he know her to be under the age of consent. Such a legislative classification violates equal protection of the laws. This violation can be easily cured by the legislature through the addition of “knowledge” as an element of the offense. Even incest, a more heinous crime, requires knowledge. RSA 639:2.
I also dissent on due process grounds because I cannot agree that the legislature is permitted to make an act a crime without requiring proof of criminal intent. At common law the general rule was that ‘“a person cannot be convicted in a proceeding of a criminal nature unless it can be shewn that he had a guilty mind.’ ” State v. Goonan, 89 N.H. 528, 529, 3 A.2d 105, 105-06 (1938), quoting The King v. Brinkley, 14 Ont. L. R. 434, 446. Blackstone said that a “vicious will” is necessary to constitute a crime. 4 W. BLACKSTONE, COMMENTARIES 21. In other words, “the mental is fundamental.” Nord, The Mental Element in Crime, 37 U. Det. L.J. 671 (1960).
Under our system of law, I believe there can be no crime without mens rea. This court recently has required criminal intent in the common-law offense of criminal contempt. State v. Linsky, 117 N.H. 866, 379 A.2d 813 (1977). We have held that the imposition of vicarious criminal liability on parents of minors simply because they occupy the status of parents offends the due process clause of our State constitution. N.H. CONST, pt. I, art. 15. State v. Akers, 119 N.H. 161, 400 A.2d 38 (1979).
*491A similar statutory rape statute was analyzed in State v. Guest, 583 P.2d 836, 839 (Alas. 1978), in which the court stated, “where the .. . statute is not a public welfare type of offense, either a requirement of criminal intent must be read into the statute or it must be found unconstitutional.” In England, the source of our law on the subject, “reasonable mistake of age has never been denied as a defense in an English statutory rape case,” nor has the mens rea requirement been modified. Myers, Reasonable Mistake of Age: A Needed Defense to Statutory Rape, 64 MICH. L. REV. 105, 110 (1965). I find no reason to depart from the fundamental mens rea requirement of our law, and accordingly dissent.