concurring and dissenting: I concur in the majority opinion except for the majority’s affirmance of the conviction for aggravated sexual battery.
Over the years, this court has not been consistent with language and tests applied in criminal cases concerning lesser included crimes, lesser degrees of the same crime, multiplicity, duplicity, merger, and a crime necessarily proved if the crime charged were proved. We frequently have “mixed and matched” the various theories in order to reach a desired result. Consequently, confusion continues to reign. Few, if any, in the criminal justice system apply either K.S.A. 21-3107(2) or case law concerning charges and instructions involving multiple charges arising from a single event with any degree of comfort or assurance.
This court, in State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988), attempted to simplify what had become complex, but, by taking Fike literally, subsequently has lost sight of the reason for the rules of law in this area. The underlying rationale is that a single act of force cannot provide the basis for multiple convictions.
The statutory elements of sexual battery or aggravated sexual battery include a nonspousal relationship and the intent to arouse or satisfy the sexual desires of the offender or another. These *406two elements are not required to prove attempted rape, rape, attempted sodomy, or sodomy.
Based on the majority opinion, a jury can and, in most cases, will return a verdict of guilty of attempted sexual battery or sexual battery as well as attempted rape or rape in every attempted rape or rape case (or attempted sodomy or sodomy in every attempted sodomy or sodomy case) in which the victim is not the spouse of the accused. The victim is not married to the accused in the vast majority of attempted rape, rape, attempted sodomy, and sodomy prosecutions. Consequently, the defendant can be convicted of two crimes based on a single act of force.
Whether the unlawful infliction of force was done with the intent to arouse or satisfy the sexual desires of the offender or another is rarely susceptible of direct proof. That element nearly always is proven by circumstantial evidence. I would submit that a rational jury would find that element present in every rape or sodomy case. In most cases, the element also is present in attempted rape or attempted sodomy cases in which an unlawful touching occurred. (In those “attempt” cases in which an unlawful touching is not present, the prosecution would be unable to prove the statutory elements of sexual battery.) Again, a jury could convict the defendant of two crimes based on a single act of force.
The essential elements of sexual battery are present in this case in both the attempted rape and the attempted sodomy charges. The defendant committed two acts of force, one resulting in a conviction for attempted sodomy and the other in a conviction for attempted rape. One of those two acts of force also resulted in the aggravated sexual battery conviction.
Obviously, I am aware of the many cases concerning duplicitous and multiplicitous charges. A distinction must be made based on the essential elements of a crime. To blindly accept statutory elements without analyzing their purpose could lead to allowing multiple convictions for a siiigle wrongful act because the legislature made a distinction of no significance. In deciding public policy, the legislature can properly exclude certain classes from being subject to the crime, which is what happened here when the legislature exempted spouses from prosecution in sexual battery cases. Excluding a class from prosecution is not an essential element of the crime and, therefore, the class component does *407not make sexual battery a separate crime, distinct from the greater crime of rape or sodomy. The addition of the sexual arousal language also does not add an essential element because sexual arousal is inherent in the greater crime of rape or sodomy.
I would hold that sexual battery is a crime that necessarily is proved if a rape or sodomy is proved (K.S.A. 21-3107[2][d]) and the same act of force was used to convict the defendant of attempted rape, rape, attempted sodomy, or sodomy. Therefore, I would reverse the aggravated sexual battery conviction.
Lockett and Allegrucci, JJ., join the above and foregoing dissenting and concurring opinion.