(concurring specially).
For reasons stated below I concur in the result obtained by the opinion of Justice Bakes but disagree with the reasoning. Specifically, I disagree with its reliance upon the defectiveness of the complaint. This issue was neither considered by the trial court nor directly addressed in the briefs or arguments provided on appeal. Further, the opinion will invite a new flood of collateral attacks to previous convictions, a result I regard as ill-considered, unwarranted and unnecessary. The question which is, in my opinion, properly before this Court and which provides an adequate and compelling basis for reversal is the “unconstitutional uncertainty” of I.C. § 18-5613. It is on this ground that I join in reversing the judgment of conviction.
The record here reveals little more than that the appellant, Maria Lopez, was charged, tried and convicted of violating I.C. § 18-5613 in that she did “knowingly, wilfully, intentionally and unlawfully engage in sexual activity as a business.” The subject statute states in full:
“Prostitution. — (1) Prostitution. A person is guilty of prostitution, a misdemeanor, if he or she: (a) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; or (b) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity.
“ ‘Sexual activity' includes homosexual and other deviate sexual relations. A ‘house of prostitution’ is any place where prostitution or promotion of prostitution is regularly carried on by one (1) person under the control, management or supervision of another. An ‘inmate’ is a person who engages in prostitution in or through the agency of a house of prostitution. ‘Public place’ means any place to which the public or any substantial group thereof has access.”
It is appellant’s contention that subsection (l)(a) of this provision and in particular the words “sexual activity as a business” is unenforceable as unconstitutionally vague. I agree.
The concept of void-for-vagueness arose from a common law practice of refusing to enforce legislation deemed too indefinite to be applied. See, Amsterdam, “The Void-for-Vagueness Doctrine in the Supreme Court,” 109 U.Pa.L.R. 67 (1960). It has evolved to a protection generally regarded as embodied in a Due Process Clause and prohibits holding a person “criminally responsible for conduct which he could not reasonably understand to be proscribed.” U. S. v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). In addition to this notion of “fair notice or warning” the doctrine is said to require reasonably clear guidelines to prevent “arbitrary and discriminating enforcement” and to prescribe a precise standard for the adjudication of *586guilt. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). See also, Amsterdam, supra, at 76. The principle consistently followed is that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); State v. Pigge, 79 Idaho 529, 532, 322 P.2d 703, 705 (1957); State v. Thomas, 94 Idaho 592, 594, 494 P.2d 1036 (1972).
Typically in determining the sufficiency of a statute it must be examined in light of the conduct with which an appellant is charged. U. S. v. National Dairy Prod. Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); U. S. v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960); State v. Carringer, 95 Idaho 929, 523 P.2d 532 (1974). Compare Thornhill v. Alabama, 310 U.S. 88, 98, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Here there is only the conclusory averment that appellant was engaging in “sexual activity as a business” without further explanation. Accordingly, it is from the plain language of the statute that we must judge the precision of its terms.
I.C. § 18-5613 is the result of successive amendments to the short-lived Penal and Correctional Code of 1971, Ch. 143, § 18-2102 [1971] Idaho Sess. Laws 716-17. That law included former I.C. § 18-21021 which *587in addition to the language found in the present statute contained subsections further describing prostitution-related offenses. Upon the repeal of the Penal and Correctional Code, I.C. § 18-2102(1) was re-enacted in 1972. Ch. 381, § 19 [1972] Idaho Sess. Laws 1110. However, the re-enactment was only partial in that it omitted the words “ * * * prostitution, a misdemeanor, if he or she:” which gave the law its activating language. The legislature added this necessary language in 1973. Ch. 15, § 1 [1973] Idaho Sess.Laws 31.
The re-enactment in 1972 reinstated only subsection 1 of the original law, deleting the five other subsections addressing related offenses. Whether this exclusion was intentional or inadvertent can only be surmised, but the inclusion of the parenthesized number one “(1)” for a single section act suggests the omission may have been in error. At any rate, we have only this remaining subsection from which to glean the meaning of the phrase “sexual activity as a business.”
Clearly the statute is directed toward prohibition and making criminal “prostitution.” I deem that among English speaking people the term “prostitution” has a meaning which is historic and may be said to be well understood by persons of common intellect. Such meaning, although not uniformly or identically appreciated by all, provides sufficient notice of what conduct is forbidden so that the term requires no definition. If any definition there need be, I would suggest it could be simply stated as “the giving of human bodily services to another for the purpose of carnal knowledge, coitus or other forms of heterosexual or homosexual gratification for compensation.” Such definition would comport with dictionary descriptions. See, Webster’s New International Dictionary, Unabridged (2d ed. 1957).
In the American Law Institute’s tentative drafts of the Model Penal Code, from which Idaho took the language of the 1971 statute, there was language attempting to define “sexual activity” which is pertinent to the issue here. Section 207.12 of Tentative Draft No. 9 (May 9, 1958) contained the following subsection:
“(6) Definitions. Sexual activity means carnal knowledge, deviate sexual intercourse, and sexual contact, as these terms are defined in Sections 207.4(6), 207.5(6) and 207.6(4), or any lewd act defined in Section 207.9, whether or not it is openly done as required in that Section * * * ” (at 169).
In addition the comments of the A.L.I. Reporter, as contained in the Ninth Tentative Draft, stated as follows:
“2. Sexual Activity. This term as defined in Subsection (6) covers not only sexual intercourse but also other lewd acts. Some existing laws confine themselves to offering or receiving the body for ‘intercourse.’ Since commercial prostitution offers and even features abnormal forms of sexual gratification, it is important to include this. Male as well as female prostitution is covered. The Section extends to sexual display not involving contact with the customers, for example, catering to the perverse desire to observe others in sexual activity (‘voyeurism’), since this would fall within the definition of ‘lewd act’ in Section 207.9.
“3. Hire; Promiscuity Without Hire Not Criminal. * * *
A case might be made for limiting the offense of prostitution to ‘promiscuous’ sexual activity for hire. Requiring promiscuity as well as hire would, for example, bar prosecution of a mistress who is supported by her lover. Such situations fall *588somewhat outside the target evils of our Section, but the ‘hire’ requirement itself is probably a sufficient safeguard, since the lover’s financial contributions in these relationships are more likely to be interpreted as gifts out of general affection rather than ‘hire’ for sexual activity * * * ” (at 174-75).
These descriptions were consistent with the “basic policy” behind the Institute’s proposed code of including within the definition of prostitution “homosexual and other deviate sexual behavior,” and confining the criminal sanctions to “sexual activity for hire.” See A.L.I., Model Penal Code, Tentative Draft No. 9, 174 (May 9, 1958).
Nevertheless, in the Final Draft of the Code the subsection defining sexual activity was dropped without explanation. See A.L.I., Model Penal Code, Final Draft, § 251.2, at 233-35 (May 4, 1962). It was this modified version that was adopted in toto in Idaho’s 1971 Penal and Correctional Code. The basic policy of that tentative draft, however, remained and in my opinion is the cause of the ambiguity in the present law.
In my judgment the instant statute suffers from attempted legislative overkill. I believe that it successfully defines “a house of prostitution” and an “inmate” thereof. It also successfully defines prostitution as “[public loitering] for the purpose of being hired to engage in sexual activity.” Unfortunately, I believe the phrase “otherwise engagpng] in sexual activity as a business” results in vagueness. Certainly it could be contended that a variety of forms of otherwise legitimate pursuits are embraced in that legislative proscription. It is arguable that conducting a business involving the breeding of any form of animal life or the production of seminal fluid for medical purposes such as analysis or uterine implant could fall within the proscription of the statute.
If society through its legislative process continues to demand the prohibition of and punishment for the sale of the human body for sexual gratification, then the judicial branch of government should uphold the right of society to proscribe such conduct. However, if in so doing it is necessary for the legislature to define the term “prostitution,” it should be accomplished through the use of clear, unambiguous language which provides notice of proscribed conduct. The lack of such clear proscription of particular conduct is the vice in the instant statute.
McFADDEN, C. J., concurs.. “PROSTITUTION AND RELATED OFFENSES. — (1) Prostitution. A person is guilty of prostitution, a petty misdemeanor, if he or she:
(a) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; or
(b) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity.
‘Sexual activity’ includes homosexual and other deviate sexual relations. A ‘house of prostitution’ is any place where prostitution or promotion of prostitution is regularly carried on by one (1) person under the control, management or supervision of another. An ‘inmate’ is a person who engages in prostitution in or through the agency of a house of prostitution. ‘Public place’ means any place to which the public or any substantial group thereof has access.
(2)Promoting prostitution. A person who knowingly promotes prostitution of another commits a misdemeanor or felony as provided in subsection (3) of this section. The following acts shall constitute promoting prostitution:
(a) owning, controlling, managing, supervising or otherwise keeping, alone or in association with others, a house of prostitution or a prostitution business; or
(b) procuring an inmate for a house of prostitution or a place in a house of prostitution for one who would be an inmate; or
(c) encouraging, inducing, or otherwise purposely causing another to become or remain a prostitute; or
(d) soliciting a person to patronize a prostitute; or
(e) procuring a prostitute for a patron; or
(f) transporting a person into or within this state with purpose to promote that person’s engaging in prostitution, or procuring or paying for transportation with that purpose; or
(g) leasing or otherwise permitting a place controlled by the actor, alone or in association with others, to be regularly used for prostitution or the promotion of prostitution, or failure to make reasonable effort to abate such use by ejecting the tenant, notifying law enforcement authorities, or other legally available means; or
(h) soliciting, receiving, or agreeing to receive any benefit for doing or agreeing to do anything forbidden by this subsection.
(3) Grading of offenses under subsection (2). An offense under subsection (2) of this section constitutes a felony of the third degree, if:
(a) the offense falls within subsection (2)(a), (b), or (c) of this section; or.
(b) the actor compels another to engage in or promote prostitution; or
(c) the actor promotes prostitution of a child under sixteen (16), whether or not he is aware of the child’s age; or
(d) the actor promotes prostitution of his wife, child, ward, or any person for whose care, protection or support he is responsible.
Otherwise the offense is a misdemeanor.
(4) Presumption from living off prostitutes. A person, other than the prostitute or the prostitute’s minor child or other legal dependent incapable of self-support, who is supported in whole or substantial part by the proceeds of *587prostitution is presumed to be knowingly promoting prostitution in violation of subsection (2) of this section.
(5) Patronizing prostitutes. A person commits a violation if he hires a prostitute to engage in sexual activity with him, or if he enters or remains in a house of prostitution for the purpose of engaging in sexual activity.
(6) Evidence. On the issue of whether a place is a house of prostitution, the following shall be admissible evidence: its general repute; the repute of the persons who reside in or frequent the place; the frequency, timing and duration of visits by non-residents. Testimony of a person against his spouse shall be admissible to prove offenses under this section.”