concurring and dissenting.
I agree with the majority of the court that the superior court failed to instruct Flink’s jury properly concerning the essential elements of sexual abuse of a minor. I also agree that the statutes governing this offense must be interpreted to require proof of a criminal intent. However, I cannot agree that the offense of sexual abuse of a minor requires proof of specific intent. Nor do I believe that the superior court’s failure to give appropriate instructions to the jury in this case constitutes harmless error.1
I. MENS REA
At the time of Flink’s offense, AS 11.41.-440(a)(2) provided, in relevant part:
(a) A person commits the crime of sexual abuse of a minor if, being 16 years of age or older he engages in
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*737(2) sexual contact with a person who is under 13 years of age.2
At the time of Flink’s offenses, the term “sexual contact,” was defined in AS 11.81.-900(b)(51):
(51) “Sexual contact” means
(A) the intentional touching, directly or through clothing, by the defendant of the victim’s genitals, anus, or female breast; or
(B) the defendant’s intentionally causing the victim to touch, directly or through clothing, the defendant’s or victim’s genitals, anus, or female breast.3
The position taken by the state is that this statutory language should be applied literally. Thus, the state urges us to hold that sexual abuse can be established by proof of a voluntary act of sexual contact. The state concedes that the statutory definition of sexual contact is broad, but it maintains that the possibility of punishing innocent conduct has been avoided by the statute which provides that use of nondeadly force is justified in certain circumstances involving special relationships between adults and children. The state relies on the defense of justification defined in AS 11.-81.430, which provides, in relevant part:
Justification: Use of force, special relationships. (a) The use of force upon another person that would otherwise constitute an offense is justified under any of the following circumstances:
(1) When and to the extent reasonably necessary and appropriate to promote the welfare of the child or incompetent person, a parent, guardian, or other person entrusted with the care and supervision of a child under eighteen years of age or an incompetent person may use reasonable and appropriate nondeadly force upon that child or incompetent person.
(2) When and to the extent reasonably necessary and . appropriate to maintain order and when the use of force is consistent with the welfare of the students, a teacher may, if authorized by school regulations and the principal of the school, use reasonable and appropriate nondeadly force upon a student ....
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(5) A licensed physician, paramedic, or registered nurse; or a person acting under the direction of a licensed physician, paramedic, or registered nurse; or any person who renders emergency care at the scene of an emergency, may use reasonable and appropriate nondeadly force for the purpose of administering a recognized and lawful form of treatment which is reasonably adapted to promoting the physical or mental health of the patient if
(A) the treatment is administered with the consent of the patient or, if the patient is a child under eighteen years of age or an incompetent person, with the consent of the parent, guardian, or other person entrusted with care and supervi*738sion of the child or incompetent person; or
(B) the treatment is administered in an emergency if the person administering the treatment reasonably believes that no one competent to consent can be consulted under the circumstances and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.4
The state notes that the revised criminal code defines “force”5 sufficiently broadly to include any physical touching, including innocent types of touching that might otherwise fall within the statutory definition of sexual contact. Thus, the state concludes that no criminal intent apart from a knowing act of sexual contact should be read into the statutory provisions governing sexual abuse of a minor.
In contrast, Flink contends that if the sexual abuse statute is applied literally, as proposed by the state, the offense would lack any criminal intent requirement and would therefore violate the constitutional right to due process of law. There is considerable merit to Flink’s constitutional concerns. The literal language of the sexual abuse of a minor statute prohibits any conduct amounting to a sexual contact. The term sexual contact is in turn defined expansively in AS 11.81.900(b)(51). A literal reading of this provision would encompass within the definition of “sexual contact” an extremely wide range of innocent and necessary everyday activities that are integrally related to parental and medical care. For example, nursing a baby, carrying a child on one’s shoulders or lap, bathing a child, and changing a child’s diapers are all acts that can be construed to fall within the literal statutory definition of sexual contact. Under the definition of sexual contact contained in AS 11.81.-900(b)(51), the only requirement of intent is that the acts be knowingly performed.6
Because the provisions governing sexual abuse of a minor do not expressly impose an intent requirement other than a knowing act of sexual contact, and because “sexual contact” is broadly defined to include numerous parental, custodial and medical acts of a necessary and innocent nature, the offense would, in effect, be a strict liability crime unless the literal language of *739the statutes was construed to require some additional element of criminal intent. Although the statutory definition of sexual contact requires knowing conduct and therefore includes an element of intent, that element does not help to differentiate between the wide variety of innocent touchings and harmful touchings potentially covered by the broad definition of sexual contact. Thus, the intent element included in the statute is not a criminal intent and does not satisfy the requirement of mens rea —that is, a culpable mental state, or an awareness of wrongdoing. See, e.g., State v. Rice, 626 P.2d 104, 107-09 (Alaska 1981); Hentzner v. State, 613 P.2d 821, 826 (Alaska 1980); Holton v. State, 602 P.2d 1228, 1235-36 (Alaska 1979); Speidel v. State, 460 P.2d 77, 78 (Alaska 1969); Wheeler v. State, 659 P.2d 1241, 1250-51 (Alaska App.1983). See also Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288, 293 (1952). An awareness of wrongdoing might be unnecessary if the conduct prohibited by the statute was itself necessarily harmful — malum in se. However, the range of conduct prohibited is so broad that the offense is malum prohibi-tum, and an awareness of wrongdoing must' be included as a necessary element. See Hentzner v. State, 613 P.2d at 826.
It is insufficient to argue, as does the state, that the lack of an express criminal intent requirement in the sexual abuse statute is cured by the justification statute, which creates a defense when the use of nondeadly physical force is reasonable and necessary for parental, custodial or medical purposes. If the state’s argument for literal statutory construction were adopted, the statutes governing sexual abuse of a minor would in effect create a presumption that any act of knowing sexual contact was culpable. Unless the accused presented some evidence of justification, that presumption would be binding: the jury would not have the authority to reject the presumption and would be required to convict. Thus, the state would be permitted to charge people and bring them to trial for a wide variety of normal parental, custodial and medical acts, and those people would subjected to conviction unless they were prepared to place the question of justification in issue. The grand jury would not consider the issue of justification before indicting, and the petit jury would consider it only if raised by the accused. be
The problem with this approach is that the presumption of a culpable touching is simply irrational. The types of necessary and reasonable parental, custodial and medical contacts that are included within the statutory definition of sexual contact constitute the norm rather than the exception — they are realistically far more commonplace than the- sexually motivated or otherwise harmful touching that the sexual abuse statute rightfully seeks to prevent. Thus, a presumption that acts falling within the definition of sexual contact will be culpable and subject to criminal sanction plainly lacks empirical validity and is rationally untenable. Such a presumption, since it is untenable, would violate due process. See County Court of Ulster County v. Allen, 442 U.S. 140, 156-60, 99 S.Ct. 2213, 2224-26, 60 L.Ed.2d 777, 791-94 (1979); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).
Thus, in order to pass constitutional muster the offense of sexual abuse of a minor must be construed to require proof of a criminal intent beyond a knowing act of sexual contact. However, I do not think that the statutes governing this offense can reasonably be construed to require proof of specific intent. To the contrary, I believe that the legislature’s desire to eliminate specific intent as an element of sexual abuse of a minor is abundantly clear.
The definition of sexual contact contained in AS 11.81.900(b)(51) is on its face unambiguous: this definition unmistakably omits any reference to a specific intent to arouse sexual interest. Because AS 11.81.-900(b)(51) defines the term “sexual contact,” and not just the word “contact,” I find it difficult to accept the majority’s conclusion that something more should be read into the word “sexual” than is already contained in the definition of sexual contact.
*740Moreover, under prior Alaska law, a specific intent to gratify sexual passion was expressly required to prove the offense of lewd and lascivious acts toward a child, a crime comparable to the current offense of sexual abuse of a minor. See former AS 11.15.134(a). It seems highly unlikely that the legislature would have neglected to use specific intent language similar to that contained in the former statute had it wanted to enact a sexual abuse law requiring specific intent. In this regard, I also think it is significant that, as Judge Singleton’s opinion recognizes, the traditional specific intent requirement was dispensed with by the Michigan and Arizona statutes from which Alaska’s current sexual abuse of a minor law was initially derived.
The only arguable indication that the legislature might have wanted to retain specific intent as an element of sexual abuse is the lack of any express discussion of eliminating specific intent in the commentary to the Revised Alaska Criminal Code or the commentary to the Tentative Draft. Yet I do not think that the silence of the code commentaries gives rise to a level of ambiguity sufficient to warrant judicial resurrection of the specific intent requirement. It seems entirely plausible that the absence of any discussion in the commentaries concerning specific intent reflects an understanding by the drafters of the code that specific intent simply was not relevant to the offense of sexual abuse of a minor. Thus, I would conclude that there is nothing in the express language of the sexual abuse statute or in the legislative history of that provision to justify an interpretation adding a specific intent requirement to the offense of sexual abuse of a minor.
Nor do I believe that it is necessary to read specific intent into the sexual abuse statute in order to avoid constitutional problems; the statutory provisions generally applicable to all offenses within the Revised Alaska Criminal Code suggest a more suitable mens rea requirement than that of specific intent.
Under AS 11.81.600, the state is required to prove a criminal intent, or “culpable mental state,” unless the legislature manifests its intent to dispense with the mental element of an offense. AS 11.81.610(b) specifies the culpable mental states applicable in cases where one is not expressly provided for in the statutory definition of an offense:
(b) Except as provided in AS 11.81.-600(b) if a provision of law defining an offense does not prescribe a culpable mental state, the culpable mental state that must be proved with respect to
(1) conduct is “knowingly”; and
(2) a circumstance or a result is “recklessly.”
In Reynolds v. State, 664 P.2d 621 (Alaska App.1983), this court considered the applicability of AS 11.81.610(b) to eases of first-degree sexual assault involving nonconsen-sual sexual penetration in violation of AS 11.41.410(a)(1). We noted that a mental state was not expressly provided for under AS 11.41.410(a)(1). We held that, under AS 11.81.610(b)(1), the state must prove that the accused knowingly engaged in conduct — an act of sexual penetration. We went on to hold that, under AS 11.81.-610(b)(2), the state was implicitly required to establish that the accused acted recklessly with respect to the circumstances of the offense — the lack of consent by the victim. Id. at 625. See also Neitzel v. State, 655 P.2d 325, 331-34 (Alaska App.1982).
Our holding in Reynolds provides the correct rationale for deciding the mens rea issue in this case. In cases of sexual abuse of a minor, the state is expressly required to establish a knowing act of sexual contact. Because the broad statutory definition of sexual contact makes it inaccurate to characterize the requirement of knowing conduct as a culpable mental state, AS 11.81.610(b) specifies the culpable mental state that must apply to the circumstances of the offense. Since the definition of sexual contact already requires knowing conduct, it is reasonable to conclude that, under AS 11.81.610(b)(2), the appropriate culpable mental state for sexual abuse of a minor is recklessness with respect to the circumstances of the offense.
*741Thus, I would hold that AS 11.81.610(b) requires the state to allege and prove that the accused knowingly engaged in an act of sexual contact and that he acted with reckless disregard for the unjustified nature of his conduct. The determination of whether a specific act of sexual contact is justified must be made by reference to AS 11.81.-430, which defines the circumstances under which nondeadly force may be used as an incident to parental, custodial and medical care and supervision. The concept of recklessness is governed by the statutory definition of that term.7 While I recognize that this interpretation requires the state to shoulder the burden of alleging and proving lack of justification in cases involving sexual abuse of a minor, I believe that proof of this element is necessary, because the offense would otherwise fail to specify a culpable mental state. I further believe that this interpretation would be far less burdensome than requiring the state to prove specific intent. In order to establish specific intent, the state will be required to do more than negate the possibility that the accused reasonably believed his conduct to be justified; it will be required to prove that the accused acted with a conscious objective to achieve a specific impermissible result. Only when the state can affirmatively establish the actual purpose of the accused will it be entitled to prevail. It is precisely this type of narrowness that the legislature apparently sought to avoid in its effort to dispense with specific intent as an element of sexual abuse of a minor.
Moreover, interpreting the sexual abuse statute to require recklessness as the applicable culpable mental state would be consistent with the interpretations that the courts of Michigan and Arizona have given to similar statutory provisions, upon which Alaska’s statute was based. See, e.g., People v. Brewer, 101 Mich.App. 194, 300 N.W.2d 491, 492 (1981) (under M.C.L. § 750.520a(g), sexual contact requires proof of an intentional touching that can reasonably be construed as having been committed for the purpose of sexual arousal or gratification; actual intent need not be proved); State v. Madsen, 137 Ariz. 16, 667 P.2d 1342, 1344 (Ariz.App.1983) (under A.R.S. § 13-1410, determination whether the accused acted with an unnatural or abnormal sexual interest must be objectively made on the basis of community standards; actual intent need not be proved).
Finally, interpreting the sexual abuse statute to require recklessness comports with the recommendations of the National Legal Resource Center for Child Advocacy and Protection of the American Bar Association, Young Lawyers Division. Recommendation 1.6 of their report, Recommendations for Improving Legal Intervention in Intra-Family Child Sexual Abuse Cases (1982), defines the offense of sexual abuse of a child to include a broad range of physical contact, but expressly excludes from that definition “acts which may reasonably be construed to be normal caretaker responsibilities, interactions with, or affection for a child ....” Although the National Legal Resource Ceñter’s recom*742mendation might be construed to require proof of negligence rather than recklessness, I believe that it is otherwise virtually identical to the interpretation of Alaska’s sexual abuse statute that I would adopt.
I conclude that there is sound authority favoring an interpretation of the Alaska sexual abuse statutes that would require proof of a reckless disregard for lack of justification as the criminal intent for the offense. As a matter of statutory interpretation, I believe this approach is more tenable than the alternative of requiring proof of specific intent. Accordingly, I disagree with the majority's decision to require proof of specific intent as an element of sexual abuse of a minor.
II. HARMLESS ERROR
Regardless of whether recklessness or specific intent is adopted as the criminal intent for sexual abuse of a minor, I cannot agree with Judge Singleton’s conclusion that the trial court’s failure to instruct properly on criminal intent was harmless error. I agree with Judge Singleton that the jury would not have been likely to find an absence of specific intent, knowledge, or recklessness under the evidence presented. However, Flink’s jury was never instructed that it was necessary to find that Flink acted with any culpable mental state. Flink certainly did not concede that the jury would be required to find that he acted recklessly or with specific intent if it rejected his version of the offense. Nor was his defense necessarily inconsistent with a defense based on lack of criminal intent, as, for example, an alibi defense might have been. Finally, this was not a case in which the arguments of the parties effectively required the jury to find mens rea. See J.E.C. v. State, 681 P.2d 1358 (Alaska App., 1984). Cf. Reynolds v. State, 664 P.2d 621, 628 (Alaska App.1983).
In effect, the trial court’s failure to instruct the jury on the necessity of finding an appropriate criminal intent deprived Flink of the opportunity to obtain a jury determination of that issue. Since Flink did not expressly concede criminal intent and did not present a defense that was necessarily inconsistent with lack of specific intent or recklessness, I believe that it would be improper to deny Flink his right to a jury determination of that issue, whether recklessness or specific intent is adopted as the appropriate criminal intent for the offense. Regardless of the apparent strength of the evidence against him on criminal intent, Flink is entitled to have a jury determine all of the essential elements of the offenses charged.8
Thus I believe Flink’s case must be remanded for a new trial on Counts I, III, IV and V.
. I join in the conclusion that Flink's conviction of Count VI of the indictment, which charged first-degree sexual assault, must be affirmed. I also join in part III of Judge Singleton’s opinion, which affirms Flink's sentence for first-degree sexual assault.
. The legislature has recently redefined the offense of sexual abuse of a minor, providing for four separate degrees of sexual abuse. See AS 11.41.434-.440. The provisions of former AS 11.41.440(a)(2) under which Flink was convicted have, in substance, been reenacted as AS 11.41.436(a)(2). This conduct is now classified as sexual abuse of a minor in the second degree, a class B felony. See AS 11.41.436(b). At the time of Flink’s offenses, sexual abuse of a minor was a class C felony. See former AS 11.41.-440(b).
Flink was also convicted of contributing to the delinquency of a minor, AS 11.51.130. At the time of Flink’s offense, AS 11.51.130 provided, in relevant part:
(a) A person commits the crime of contributing to the delinquency of a minor if, being 19 years of age or older, he
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(4) engages in sexual contact with a child under 16 years of age but 13 years of age or older.
As charged in this case, the contributing to the delinquency of a minor statute was a lesser offense of sexual abuse of a minor, differing only in the requirement governing the age of the victim. The offense was a class A misdemean- or. Because the statutory definition of "sexual contact” is crucial both to the sexual abuse charges and the charge of contributing to the delinquency of a minor in Flink’s case, my discussion of “sexual contact” applies to both offenses.
. The statutory definition of "sexual contact” has not been altered by the legislature. However, the definition has been renumbered and is currently contained in AS 11.81.900(b)(52).
. Justification under AS 11.81.430 is a defense. See AS 11.81.300. The term "defense” is defined as follows in AS 11.81.900(b)(15):
(15) "defense”, other than an affirmative defense, means that
(A) some evidence must be admitted which places in issue the defense; and
(B) the state then has the burden of disproving the existence of the defense beyond a reasonable doubt.
. "Force" is defined in AS 11.81.900(b)(22), which provides:
(22) "force” means any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or confinement; “force" includes deadly and nondeadly force.
. The words "intentional” and "intentionally,” as used in the statutory definition of “sexual contact,” do not imply creation of a specific intent requirement. Although AS 11.81.900(a)(1) makes it clear that statutory references to "intentional” conduct normally imply specific intent, under that statutory provision, specific intent can relate only to the results of a person's conduct. Thus, a person acts intentionally when his "conscious objective is to cause” a result specified by law. Id. The word "knowingly” is used by the code as the mental state that ordinarily relates to conduct. Thus, under AS 11.81.900(a)(2), a person acts "knowingly" if he engages in proscribed conduct with an awareness of the nature of his conduct. Under AS 11.81.900(a)(3), the word "recklessly” is generally specified as the culpable mental state that relates to the circumstances of an offense. Since the definition of sexual contact contained in AS 11.81.900(b)(51) plainly uses “intentional” and "intentionally” to relate to conduct, and not result, the statutory language must be construed to require conduct that is "knowing” under AS 11.81.900(a)(2).
The use of "intentional” and “intentionally” in the definition of "sexual contact” appears to be carried over from the Tentative Draft of the Revised Alaska Criminal Code, in which the mental state "intentionally" could relate to either conduct or results. Under the Tentative Draft, if "intentionally" related to conduct instead of result, its meaning was synonymous to "knowingly.” See generally Neitzel v. State, 655 P.2d 325, 328-30 (Alaska App.1982) (holding that the language of Alaska’s second-degree murder statute, applicable to a person who "intentionally performs an act that results in the death of another person,” must be construed to require knowing conduct and not specific intent).
. As with other types of cases involving recklessness as the culpable mental state, I believe that the definition of recklessness contained in AS 11.81.900(a)(3) must apply in cases involving sexual abuse of a minor. AS 11.81.900(a)(3) provides:
a person acts "recklessly” with respect to a result or to a circumstance described by a provision of law defining an offense when the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation; a person who is unaware of a risk of which the person would have been aware had that person not been intoxicated acts recklessly with respect to that risk.
Thus, in the context of a case involving sexual abuse of a minor, the prosecution would be required to show that the accused knowingly committed an act within the statutory definition of "sexual contact" and that, in so doing, he consciously disregarded a substantial and unjustifiable risk that the act would not be justified. As specified in AS 11.81.610(c), a showing that the accused acted "intentionally” or “knowingly” would also suffice to establish the culpable mental element of recklessness.
. Judge Coats joins in the conclusion that failure to give an appropriate instruction on intent did not constitute harmless error.