concurring in part and dissenting in part.
I agree that a juvenile may be subjected to the jurisdiction of the juvenile court for treatment or rehabilitation upon a showing that he has committed an act which, if committed by an adult, would be a public offense. See A.R.S. § 8-201. The problem with the majority opinion, however, is that it assumes that the delinquency adjudication sought in this case “does not result in the imposition of criminal sanctions ...” Ante at 702-703. This view is quite incorrect. A.R.S. § 8-241 provides that if the court finds a child “delinquent,” it may make any one of a variety of placements, all of them “subject to the supervision of a probation department,” or may “award” the child “to the department of corrections without further directions as to placement by that department.” A.R.S. § 8-241(A)(2) (e). If “awarded” to the department of corrections, the child remains under its control until discharge or until the child’s eighteenth birthday. A.R.S. § 8-246; In re Appeal in Maricopa County Juvenile No. J-86509, 124 Ariz. 377, 604 P.2d 641 (1979), cert. denied, 445 U.S. 967, 100 S.Ct. 1660, 64 L.Ed.2d 245 (1980).
It is true that by virtue of A.R.S. § 8-207(B), the “delinquent” child may not be kept in an institution “used primarily for the execution of sentences of persons convicted of a crime.” Thus, the institution is not called a prison, and may have a more palatable label — such as industrial school, juvenile institution, receiving home, or the like. Nevertheless, commitment to the department of corrections results in a type of confinement and is a criminal sanction. In re Gault, 387 U.S. 1, 27, 87 S.Ct. 1428, 1443, 18 L.Ed.2d 527 (1967) (construing many of the statutes cited above). In Gault, the United States Supreme Court held that the possible imposition of criminal sanctions, however euphemistically titled, requires the observance of certain procedural safeguards necessary to preserve due process. “Under our Constitution, the condition of being a boy does not justify a kangaroo court.” Id. at 28, 87 S.Ct. at 1444. Nor should the condition of being a child justify the imposition of criminal sanctions absent proof that a crime was committed.
The facts of the ease at bench well illustrate the situation. The juvenile who is to receive “the benefit” of “treatment” and “rehabilitation” is a 13 year old boy with a mental age of 9 or 10. He will be required to stand trial and possibly receive criminal punishment for having consensual sexual relations with a 15 year old girl. No adult could be convicted of such a public offense without proof of the requisite mental capacity — that he knew the nature and quality of his act, and knew that it was wrong. A.R.S. § 13-502. The legislature has provided that where a person is less than 14 years of age at the time of the criminal conduct charged, the State must submit “clear proof that at the time of committing the conduct charged the person knew it was wrong.” A.R.S. § 13-501. To try, convict, and punish this retarded 13 year old for “sexual conduct with a minor” (A.R.S. § 13-1405) absent proof of his capacity to know and understand the wrongfulness of that conduct, is to invoke and apply the criminal aspects of the juvenile justice system without due process of law. In re Gault, supra. If the State were to seek prosecution of this minor in adult court, it would have to meet the burden of *153proof imposed by § 13-501.1 Why should it be able to evade that requirement by “prosecution” in juvenile court? I believe that it cannot. See In re Gladys R., 83 Cal.Rptr. 671, 464 P.2d 127 (1970).
This is not to say that the State is without power or that it must turn such children loose without supervision or control. The State may differentiate between delinquent, dependent, and incorrigible children and may, where necessary, require that a dependent child undergo custodial treatment (A.R.S. § 8-241(A)(1)(b)). If the present statutes are insufficient for that purpose, they can be amended. What the State cannot do is impose criminal sanctions upon a juvenile under the guise of treatment or rehabilitation, when confinement and incarceration is the likely or possible result. Allowing criminal prosecution and punishment without proof of mens rea by the simple expedient of calling such prosecution “civil” or “rehabilitative” confers too much dignity on juvenile court euphemisms. It is only to the love-struck poet that stone walls do not a prison make, nor iron bars a cage. To the rest of mankind, to be “awarded” to the department of corrections and put behind stone walls or iron bars is to be in prison, even if it is called “juvenile rehabilitation.”
So wide a gulf between the State’s treatment of the adult and of the child requires a bridge sturdier than mere verbiage, and reasons more persuasive than cliche can provide.
In re Gault, 387 U.S. at 30-31, 87 S.Ct. at 1445.
I dissent.
. The maximum sentence possible for this class 6 felony would be 18 months. See A.R.S. §§ 13-1405(B) & 13-701. Confined as a juvenile, however, this 13 year old may be incarcerated for up to 5 years at the discretion of the department of corrections.