specially concurring.
I concur in the result in this case but disagree with the majority’s analysis of what the legislature intended by “offensive physical contact.” The majority contends that the legislature intended that “offensive physical contact” is required to be “substantially the same as a strike, shove or kick.” This leaves then, as noncriminal, such conduct as the fondling of a female’s breasts, for example, or the placing of one’s hands on a stranger’s sexual organs, all with the most malevolent intent to harass, annoy or alarm. I do not believe this was the legislature’s intent.
Going to the legislative history for help, I agree with the majority that:
“The legislative history is less clear as to the lower limit of ‘offensive physical contact’ intended to be a violation of OES 166.065(1) (a). * * *”
*600But, while some of the history may be capable of another interpretation, the strongest indication is that by “offensive physical contact” the legislature meant any physical contact with the requisite intent that was. not authorized, privileged or consented to.
The Criminal Law Revision Commission’s Commentary states that ORS 166.065(1) (a)
“* * * is designed to prohibit conduct presently constituting ‘simple assault.’ The assault sections in Article 11 require a physical injury. Petty batteries not producing injury will not constitute criminal assault under Article 11. If petty battery is committed with the intent to ‘harass, annoy or alarm’ it will be subject to prosecution as harassment.” Proposed Criminal Code, p 218.
In other words, the draftsmen equated the action element of petty battery with the action element of harassment under ORS 166.065(1) (a).
Reading the above-quoted Commentary together with the Commentary to the then proposed assault provisions, Proposed Criminal Code, p 95, I conclude the draftsmen were thinking in terms of the common law meaning of battery when they made the analogy between battery and harassment. At common law any touching of another, with the requisite intent, could constitute a battery. 6 Am Jur2d at 10-11, Assault and Battery § 5; 6 CJS 914, Assault and Battery § 57. Thus a person who kissed a total stranger, or placed his hands on, for example, a stranger’s sexual organs, or spat into a stranger’s face would have committed a common law battery. See LaFave & Scott, Criminal Law 604 (1972). I believe the harassment statute, ORS 166.065(1) (a), was intended to cover such situations and all others involving an unconsented, unprivileged, unauthorized physical contact.
*601As thus interpreted, OES 166.065(1) (a) is not unconstitutionally vague. The prohibition against touching another person provides a man of common intelligence with adequate notice of the prohibited conduct. See State v. Hodges, 254 Or 21, 457 P2d 491 (1969).
Here the defendant’s acts constitute harassment under both the majority and this analysis. I concur in the result.