dissenting, with whom THOMAS, J., joins.
The evidence at trial, upon which the jury convicted appellant Everett W. Phillips, was graphic and repugnant. Yet, the majority does not say much about the details of the sexual assault and indecent acts which Phillips and his cohorts Swazo and Harvey forced upon the defenseless victim.
On January 5, 1986, Phillips and his companions, Harvey and Swazo, forcibly abducted a 38-year old woman from a sidewalk in Rock Springs, Wyoming. Once the trio physically restrained her in the rear seat of Phillips’ crew cab truck, Swazo roughly removed most of the victim’s clothing while Harvey held her arm. Phillips held her leg and drove the truck around Rock Springs while the gang assault continued. Helpless against her tormentors, the victim was sexually molested for nearly twenty minutes by Swazo as he was both spurred on and taunted by Phillips and Harvey, who were waiting their turn. Swazo sucked the victim’s breasts, performed cunnilingus on her, and inserted his fingers into her vagina. He tried to insert his penis into her vagina. All the while, *127the victim pleaded with him not to rape her. Phillips and Harvey cheered and shouted profanities while Swazo molested and abused her. Phillips said, “If you can’t get it up let me.” The victim testified she was afraid for her life.
Finally, Phillips stopped his truck and, with trousers down, tried to push Swazo aside so he (Phillips) could have his way with the victim. When Swazo resisted, Phillips became angry. He let it be known in no uncertain terms that he was going to drop Swazo and Harvey off, take the victim into the mountains, do what he wanted with her, and then kill her. Luckily for the victim, an alert citizen of Rock Springs had witnessed her abduction and had quickly notified law enforcement authorities. The Rock Springs police responded, located Phillips’ truck, and rescued the victim. Following the arrests of the three, Swazo pled guilty and was convicted, and testified against Phillips and Harvey.
Although the majority has not seen fit to relate these facts, it has seen fit to reverse the jury’s conviction of Phillips and set him free.
At the heart of this decision is the majority’s large concern for Phillips’ presumed pretrial anxiety during the period he was awaiting trial. By choosing this course the majority decision signals a startling departure from this court’s past controlling decisions and the seminal case of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (expressly adopted by this court in Cosco v. State, 503 P.2d 1403, 1405 (Wyo.1972)), from which those past decisions derive. Consequently, I most strongly dissent.1
Of the four Barker factors bearing upon any speedy trial challenge, the last one, prejudice to the accused, is particularly relevant here for two reasons. First, as the majority concedes, this record reveals no evidence of prosecutorial misconduct and contains a meager indication that Phillips, unoppressed by pretrial incarceration, made a pro forma assertion of his speedy trial right a mere fifteen days before his trial began. Ante at 121. Second, and more important, as the majority further concedes, this record is devoid of any actual prejudice to Phillips’ ability to formulate a defense or to his liberty while he waited and prepared for trial. Ante at 8. Unlike the majority, as I focus on the factor of prejudice to the accused, I am aware that Justice Powell instructed us in Barker that inherent in this factor are three interests: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. Such prejudice did not happen to the accused here.
With these interests in mind as I draw upon Barker and aligned past Wyoming decisions, I cannot conclude, as the majority does, that uncritically combining the four balancing test factors set out in Barker, and adding presumptions not supported by the record, will produce a finely tuned formula that can be mechanically applied to yield a “correct” answer to each and every speedy trial case. The United States Supreme Court set out those factors in Barker as analytical tools, useful in any given case only to the extent that they point to a just result under the Constitution. See Barker, 407 U.S. at 533-34, 92 S.Ct. at 2193-94, 33 L.Ed.2d at 118-19.
In Barker, the Court considered the record and concluded that, under the four factors set out above, the case was a close one for affirmance. In my judgment Phil*128lips does not begin to present us with a record capable of raising his case to that level. A brief comparison of the facts in this case with the facts in Barker, where seven members of the United States Supreme Court voted to affirm a conviction for first degree murder and two others specially concurred in that result, brilliantly reveals how the majority of this court has become so focused on presuming reversible prejudice that it has lost sight of the overall balance dictated by this record.
By simply following Justice Powell’s lead in Barker, this court would have been able to objectively apply the balancing test in the faithful image and likeness of the crucial portion of the Barker opinion:
It is clear that the length of delay between arrest and trial — well over five years [eighteen months for Phillips]— was extraordinary. * * *
Two counterbalancing factors, however, outweigh these deficiencies. The first is that prejudice was minimal. Of course, Barker [Phillips] was prejudiced to some extent by living for over four years [eighteen months] under a cloud of suspicion and anxiety. Moreover, although he was released on bond for most of the period, he did spend 10 months in jail before trial [.Phillips was freed on bond the day of his arrest\ But there is no claim that any of Barker’s [Phillips’] witnesses died or otherwise became unavailable owing to the delay. The trial transcript indicates only two very minor lapses of memory — one on the part of a prosecution witness — which were in no way significant to the outcome [Phillips’ record does not support this type of claim].
More important than the absence of serious prejudice, is the fact that Barker [Phillips] did not want a speedy trial. Counsel was appointed for Barker [Phillips had counsel (9 days after the crime —5 days after his arrest) immediately after his indictment and represented him throughout the period]. No question is raised as to the competency of such counsel. Despite the fact that counsel had notice of the motions for continuances, the record shows no action whatever taken between October 21, 1958, and February 12, 1962, [Phillips never asserted the speedy trial right between arrest date, January 10, 1986, and July 2, 1987, (a mere nineteen days before trial, Phillips’ counsel made what can only be characterized as a pro forma motion to dismiss)] * * *. Instead, the record strongly suggests that while he hoped to take advantage of the delay in which he had acquiesced, and thereby obtain dismissal of the charges, he definitely did not want to be tried.
* # # * * *
[W]e would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial. We hold, therefore, that Barker [Phillips] was not deprived of his due process right to a speedy trial.
Barker, 407 U.S. at 534-36, 92 S.Ct. at 2194-95, 33 L.Ed.2d at 119-20. See also a similar application of Barker, by this court, speaking through Justice Cardine, in Caton v. State, 709 P.2d 1260, 1267 (Wyo.1985).
With this simple, but telling comparison between Barker and this case, I can only look on with incredulous disbelief as the majority frees Phillips. Spotlighted by the brilliant guiding light of Barker, where this nation’s highest court could not find a speedy trial right violation against an accused whose trial was delayed five years, and who spent ten months in pretrial incarceration, the majority blithely presumes a violation on a record which convincingly demonstrates that a counseled Phillips, who was released on a $10,000 bond the same day he was arrested, did not want to be tried.
I find it unacceptable that the majority’s sole legal justification for freeing Phillips is that the length of the delay here is sufficient, in and of itself, to allow this court to presume “anxiety” prejudice to Phillips' constitutional rights which in turn somehow justifies freeing him, particularly after Phillips admits that his trial was otherwise fair. The notion that charges might *129be dismissed on that basis alone was originally raised without endorsement by Justice Brennan in his concurring opinion in Dickey v. Florida, 398 U.S. 30, 53-55, 90 S.Ct. 1564, 1576-78, 26 L.Ed.2d 26, 40-42 (1970) (in which Marshall, J., joined) unéx-plainably cited as controlling precedent, ante at 15. In that special concurrence, Justice Brennan discussed, among other things, the idea that cases may arise in which the length of the delay experienced by the defendant might justify a judicial presumption of prejudice2 of constitutional magnitude. Dickey, 398 U.S. at 54-55, 90 S.Ct. at 1577-78, 26 L.Ed.2d at 41-42. This discussion was not offered as being particularly meritorious and certainly not as binding precedent for future speedy trial cases; instead, it was offered as an academic comment that the Court should begin to consider the basic questions presented by various speedy trial scenarios. After offering this discussion in Dickey, Justice Brennan expressly stated:
These comments provide no definitive answers. I make them only to indicate that many — if not most — of the basic questions about the scope and context of the speedy-trial guarantee remain to be resolved. Arguments of some force can be made that * * * prejudice ceases to be an issue in speedy-trial cases once the delay has been sufficiently long to raise a probability of substantial prejudice. Insofar as these arguments are meritorious, they suggest that the speedy-trial guarantee should receive a more hospitable interpretation than it has yet been accorded.
Dickey, 398 U.S. at 56-57, 90 S.Ct. at 1578, 26 L.Ed.2d at 42-43 (emphasis added).
Of particular concern to Justice Brennan, in presuming potential substantial prejudice sufficient to support dismissing criminal charges with finality when none had actually been shown, was that his notion suffered from an obvious practical flaw. He states:
The difficulty in [presuming prejudice after a substantially long delay] of course, lies in determining how long a prosecution must be delayed before prejudice is assumed. It is likely that generalized standards would have to be developed to indicate when during the course of the delay there arises a probability of substantial prejudice. Until delay exceeds that point, the burden most probably would remain on the accused to show that he was actually harmed. Once, however, delay exceeds that point prejudice would cease to be an issue, unless the government wished to argue harmless error. Though one temporal standard could very likely govern most prosecutions, account would need to be taken of those types of cases that diverge from the norm.
Id., 398 U.S. at 55, 90 S.Ct. at 1577-78, 26 L.Ed.2d at 42. This difficulty is best illustrated by Justice Brennan's own reluctance to presume “anxiety” prejudice as the sole basis for dismissal of criminal charges with prejudice in cases like the one before us now. In Dickey, (Dickey was convicted of armed robbery but his trial was delayed for seven years because of his incarceration on unrelated federal bank robbery charges), Justice Brennan raised the idea of presumed “anxiety” prejudice without endorsing its application. Despite his discussion, however, he did not feel that such a presumption should be endorsed and applied as he asserted the idea in a concurrence and voted to affirm the conviction.
More telling is Justice Brennan’s vote in Barker, where he joined Justice White’s concurrence emphasizing a similar broad theme of the defendant’s liberty interest but, when push came to shove, concurred in *130affirming Barker’s conviction. Justice Brennan’s actions speak louder than his words and lend support to my conclusion that turning a. convicted violent criminal (here a gang sexual molester) loose on the public, to make a point to our district courts, is an extreme and drastic step.3 Although the United States Supreme Court might conceivably threaten such drastic action based on presumed “anxiety” prejudice in a case with a longer delay than those in Dickey or Barker, it has only invoked the dismissal remedy in fact situations where the record shows actual prejudice to the defendant’s ability to formulate a defense or where the defendant has made an actual showing of anxiety prejudice adversely affecting his liberty. See, e.g., Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).4 This is not that case.
Until now, this court has never gone any further than to reference in obiter dicta Justice Brennan’s unendorsed idea about presumed “anxiety” prejudice.5 Most recently, Justice Cardine mentioned Justice Brennan’s idea in Caton v. State, 709 P.2d at 1266; a different portion of Justice Brennan’s ideas on this subject was earlier quoted in passing by Justice Rose in Cherniwchan v. State, 594 P.2d 464, 469 (Wyo.1979). Significantly, both Justices Cardine and Rose, like Justice Brennan, were not willing to apply the presumed “anxiety” theory as a basis for reversing those cases. Caton, 709 P.2d at 1266; and Cherniwchan, 594 P.2d at 469. Cf. Heinrich v. State, 638 P.2d 641, 644-45 (Wyo.1981). In light of this, I am alarmed that this court would latch on to such vague and undefined dicta, academically discussing a concept that was not even invoked by its creator when he was confronted in Barker with a case argu*131ably more egregious than this one, and use that concept as the sole basis for dismissing the charges against Phillips under the circumstances of this case.
Before Justice Brennan would have this happen he wanted to have generalized standards developed to indicate when during the course of pretrial delay a possibility of substantial prejudice arises. Dickey, 398 U.S. at 55, 90 S.Ct. at 1577, 26 L.Ed.2d at 42. He also would want to have laid a solid analytical foundation to serve as a base for determining the weight to be gfren the various grounds for delay and how great a delay is justifiable for each such ground. Id., 398 U.S. at 55, 90 S.Ct. at 1577, 26 L.Ed.2d at 42. The majority has developed no such standards here.
My last concern, and what I willingly would call my own unsubstantiated fear, is that the majority is trying to slip in the back door a new standard for reviewing speedy trial cases. By freeing Phillips on the ground that prosecutorial delay alone allows an unsupported presumption that his constitutional rights were violated, the majority effectively guts this court’s previous endorsement, adoption and application of the Barker balancing test. See, e.g., Caton, 709 P.2d at 1266. Consequently, we are left without any principled standard by which to apply this new presumption— we are simply set adrift on a sea of emotional reaction to district court delays with neither compass, sexton, paddles nor provisions. Logically, the majority’s rationale forces us to choose from the two rigid alternatives which Justice Powell expressly rejected in Barker: (1) that we can presume a defendant to have waived his right to a speedy trial; and (2) that “the Constitution requires a criminal defendant to be offered a trial within a specified time period.” Barker, 407 U.S. at 529, 92 S.Ct. at 2191, 33 L.Ed.2d at 116. The first alternative is easily dismissed because of the very nature of the right to a speedy trial and all appellate courts’ inherent abhorrence for the idea of waiver when such a right is at stake. Id., 407 U.S. at 525-26, 92 S.Ct. at 2189-90, 33 L.Ed.2d at 113-14. The second alternative should be equally unattractive for the very reason that Justice Powell rejected it:
[Sjuch a result would require this court to engage in legislative or rulemaking activity, rather than the adjudicative process to which we should confine our efforts. * * * We find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months.
Id., 407 U.S. at 523, 92 S.Ct. at 2188, 33 L.Ed.2d at 113.
Despite this, I suspect that after our decision in this case the practice of reversing all criminal convictions obtained after a trial delay exceeding a specified time period might be attractive to the majority because of the superficial simplicity with which it can be applied. In Wyoming, Uniform District Court Rule 204 (previously Rule 22, Uniform Rules for the District Courts) states that all criminal defendants must be brought to trial within 120 days of arrest.6 This is currently the only proce*132dural guidance in Wyoming stating a specified time period for trying those charged with crimes. Cf. W.R.Cr.P. 45(b). However, the 120-day period is not mandatory under the Federal Constitution or the Wyoming Constitution, is not a rule promulgated or adopted by this court and is not the will of the people of Wyoming as expressed through our legislature. Barker, 407 U.S. at 523, 92 S.Ct. at 2188, 33 L.Ed.2d at 113; and Robinson v. State, 627 P.2d 168, 171-72 (Wyo.1981); accord Cook v. State, 631 P.2d 5, 9-11 (Wyo.1981). It is merely a nonbinding procedural anomaly, which I fear is now lingering in the back of the majority’s imagination.
When this court last addressed a speedy trial challenge based on Rule 204 in Robinson, we openly rejected dismissing the charges with prejudice on that basis, stating:
The adoption of [Rule 204] by the Judicial Conference was obviously to set guidelines to encourage and motivate prompt disposition of criminal cases and to avoid a constitutional violation with respect to speedy trial requirements. It should be noted particularly that no sanction of dismissal is provided by the rule. To so provide would have caused it to be inconsistent with Rule 45(b), W.R.Cr.P. by defining “unnecessary delay, ” which this court has decided must be determined on a case-by-case basis following standards and the tests set out in [Estrada v. State, 611 P.2d 850, (Wyo.1980) (adopting the analysis used in Barker) ] Its adoption was accordingly admirable but the fixing of an absolute deadline by [Rule 204] was in conflict with, superseded and modified by Estrada.
Robinson, 627 P.2d at 171-72 (emphasis added).
If the majority’s ultimate objective here is to put some teeth into the Rule 204 time limit, then the majority should come forward with an opinion overruling Robinson and the other Wyoming cases that rely on it. In that way, the people of Wyoming could judge for themselves whether an accused in Phillips’ situation should go free. If that is not the objective, then the majority should explain how it decided, in this case, that the substantive balance of the Barker factors led it to the conclusion that this delay was long enough to dismiss these charges, but obviously would not have led the highest court in the land to do so in a more egregious case.
I believe that when we analyze these factors, as applied by this court and the United*States Supreme Court in cases factually similar to this one, one centrally relevant consideration emerges: Whether the accused has been unfairly prejudiced in a constitutional sense such that the delay in prosecution has demonstrably impaired his defense so that he no longer can be said to be cloaked with the presumption of innocence, or such that the delay in prosecution has actually unfairly prejudiced his liberty interests. Only if the accused has been unfairly prejudiced by the delay, and only if that prejudice tips the balance in his favor, is he then entitled to the umbrella of the speedy trial right’s protection, namely, dismissal with prejudice of the criminal charge underlying his conviction.
In the speedy trial setting, the societal interest in seeing an accused fairly tried and, if justly convicted, rightly punished, requires that criminal charges be dismissed only when the unnecessary delay prevents the accused from receiving a fair trial, or when the accused can show that an unnecessary delay actually impaired his liberty. When delays shorter than those rejected by a seven-person majority of the United States Supreme Court have not prevented the accused from receiving a fair trial, and no actual impairment of liberty is shown, the societal interest requires that the criminal charges be affirmed and that the accused reap the harvest sown by the criminal behavior underlying his conviction. Words sufficiently descriptive to express my disapproval of the majority’s decision and the rationale used to reach that deci*133sion here fail conviction. me. I would affirm this
. The fervency of my disagreement with the majority opinion in this case is similar to that experienced by Justice Brown in Gee v. State, 662 P.2d 103; 105 (Wyo.1983), where he prefaced a dissent by stating:
I undertake the disconsolate task of differing with the majority, with a feeling that I am probably right
A dissent has a limited purpose. It is a voice in the wilderness urging repentance, begging or chiding the majority to correct a mistake into which it has been seduced. It may help rescue for another day a principle that is not supported today. It is also an appeal to greater enlightenment tomorrow, a plea to later courts to set things right. A dissenter fancies that he has a sense of history and does not want to associate himself with an opinion that he believes is wrong and has only a short day in the sun.
. In his special concurrence to Dickey, Justice Brennan identifies the interests to be protected by the speedy-trial clause from such prejudice. An accused’s interests include prevention of undue and oppressive pretrial incarceration and minimization of anxiety and concern accompanying public accusation because these disabilities can impair the accused’s ability to mount a defense. Dickey, 398 U.S. at 41-42, 90 S.Ct. at 1570, 26 L.Ed.2d at 34 (Brennan, J., concurring, in which Marshall, J., joined). Society's interests include effective prosecution of criminal cases, prevention of commission of other criminal acts during the pretrial period, maintaining the deterrent value of a conviction and prevention of deliberate governmental delay to gain an unfair advantage over the accused. Id., 398 U.S. at 42, 90 S.Ct. at 1571, 26 L.Ed.2d at 34-35.
. Indeed, in Dickey, Justice Brennan observed:
Finally, what is the role of prejudice in speedy-trial determinations? The discharge of a defendant for denial of a speedy trial is a drastic step, justifiable only when further proceedings against him would harm the interests protected by the Speedy Trial Clause. Thus it is unlikely that a prosecution must be ended simply because the government has delayed unnecessarily, without the agreement of the accused.
Id., 398 U.S. at 52, 90 S.Ct. at 1576, 26 L.Ed.2d at 40 (emphasis added).
. I disagree with the majority’s characterization of the holding in Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973) in this regard. In Moore, the Court was reviewing an Arizona Supreme Court interpretation of Barker and its predecessors, where the Arizona Supreme Court held that prejudice to the defense at trial was necessary to establish a federal speedy trial claim. The Court reversed and remanded that decision to the state court for further consideration, holding that the Barker test was more flexible than that and that each case should turn upon an overall substantive balance of its own facts. It is critical to note, however, that the Court did not dismiss the charges against the accused in Moore. See also Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) (accused’s presence in prison on other charges may prejudice his ability to formulate a defense — case remanded to Texas state court for further consideration — charges not dismissed).
. Since adopting the balancing test set forth in Barker, this court has only once dismissed with prejudice the charges against an accused on a speedy-trial challenge. In Stuebgen v. State, 548 P.2d 870 (Wyo.1976), District Judge Armstrong, sitting on this court by special designation, authored an opinion freeing two defendants who had been convicted of jointly possessing marihuana with the intent to deliver. Id. at 871. The basis for the dismissal appears to have been a vague presumption that an eighteen month pretrial delay was mostly attributable to the trial court and the prosecution. Id. at 874-75. It is also important to note that in the record in Stuebgen, unlike the record in this case, Stueb-gen and his compatriot Roelfson both showed that their employment and schooling, i.e., their liberty interests, were actually prejudiced by the delay. No presumption of "anxiety" prejudice, as employed by the majority in this case, would have been necessary to tip the Barker balance towards the defendants. Id. at 874-75. Because of these facts, I view the decision in Stuebgen as factually inapplicable here, and would defer to the policy against dismissal of charges with prejudice illustrated by the multitude of subsequent decisions of this court affirming convictions in the absence of a showing of prosecutorial misconduct or actual prejudice to the defendant's liberty interests or ability to formulate a defense. Compare generally the affirmances in Sodergren v. State, 715 P.2d 170 (Wyo.1986); Singer v. State, 712 P.2d 349 (Wyo.1986); Caton v. State, 709 P.2d 1260 (Wyo.1985); Tageant v. State, 683 P.2d 667 (Wyo.1984); Grable v. State, 649 P.2d 663 (Wyo.1982); Heinrich v. State, 638 P.2d 641 (Wyo.1981); Robinson v. State, 627 P.2d 168 (Wyo.1981); Estrada v. State, 611 P.2d 850 (Wyo.1980) from this decade alone.
. We should not analogize a strict enforcement of Rule 204 with the Federal Speedy Trial Act of 1974, 18 U.S.C. §§ 3161 through 3174 (1977). Under this federal statute an accused must be tried within sixty days of entry of a plea of not guilty. 18 U.S.C. § 3161(c). A delay of longer than sixty days, however, does not result in an automatic dismissal of the charges with prejudice. Instead, the statute vests the district court with discretion to dismiss the charges either with or without prejudice after it considers,
among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice. Failure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section.
18 U.S.C. § 3162(a)(2) (emphasis added). This legislative action by the Congress plainly shifts significant discretionary elements of the Barker balancing test towards addressing the question of whether charges not brought to trial within the statutory time limit will be dismissed with or without prejudice. See, e.g., United States v. Simmons, 786 F.2d 479, 485-86 (2d Cir.1986). It also adds a waiver rule regarding dismissal, which Barker might not sanction. It in no way represents a policy that can be used to bolster the majority’s decision to free Phillips in this case. If Wyoming is to follow the federal statute concerning speedy trials, the decision to do *132so belongs to the legislature. This court should strive to avoid leaving the impression that it wants to create that legislative result by implication.