(dissenting). Contrary to the express intent of the Legislature, the Court of Appeals in this case limited the definition of force under MCL 750.520e(1)(a); MSA 28.788(5)(1)(a) to the enumerated examples in the statute. Not only does the majority compound this clear error by agreeing with the Court of Appeals, it engages in further error by ignoring the fact that the sexual contact in this case continued after the complainant awoke. In light of the fact that it is so clear on this record that there was an unpermitted sexual touching, I find it particularly inappropriate that the Court would seize upon this fact situation to create a judicial exception to fourth-degree criminal sexual conduct.
i
The trial court instructed the jury that "[t]he term 'force or coercion’ means the use of actual physical force by the defendant, or any action sufficient to create a reasonable fear of dangerous consequences.” CJI 20:5:03. The defendant did not object at trial. Neither the majority opinion, the concurrence, nor the defendant claims that the instruction is an erroneous statement of the law.
In the case at bar, the seventeen-year-old complainant woke up in the middle of the night when she thought she was alone and felt a hand over her genital area under her nightdress. She reached up and felt the stubble of a beard and scratchy hair. On the basis of this evidence, the jury found force or coercion as defined under the instruction.
Defendant argues that in order to satisfy the elements of the crime as charged, force or coercion must be used to "accomplish” sexual contact. There is, of course, nothing in the statutory language to support a conclusion that the contact *534must have been originated or begun through fear of dangerous consequences. To do so would be to suggest in an analogous context that a person who woke up to see a stranger holding a gun at his head would not have been feloniously assaulted because the gun was initially pointed while he was asleep.
As summarized by the majority opinion, "[i]n this case, there was no physical overpowering, the complainant was asleep and therefore unaware of the actions which enabled the defendant to touch her, and there was no submission.” Ante,, p 519. It is apparent, however, that the touching continued after the complainant regained consciousness and did not cease until after she had spoken to her assailant, touched his face, and then turned to the lamp at the side of her bed. The complainant obviously did not consent to this touching. Submission was secured through the totality of the circumstances. It is obvious that the complainant was aware of the sexual contact as it was "effected],” "executed],” or "[brought] to a successful conclusion,” see Random House College Dictionary: Revised Edition, p 9 (definition of accomplish). Since the Court of Appeals found that the victim undoubtedly had a reasonable fear of dangerous consequences upon finding a strange man in her bedroom, and since the contact continued after she awoke, the evidence supported the verdict. The record shows an act of sexual contact which occurred while the victim was in fear.
Alternatively, I cannot find any basis in the legislation or in the record for the conclusion of the concurrence that because the victim terminated the contact on awakening, there was an insufficient basis for conviction. As the language of the concurrence illustrates, this approach leads to the conclusion that fear must cause the victim "to *535acquiesce in” the touching in order to find force or coercion. The Legislature has specifically given this Court the authority to create its own definition of force. MCL 750.520b(1)(f), 750.520c(1)(f), 750.520d(1)(b), 750.520e(1)(a); MSA 28.788(2)(1)(f), 28.788(3)(1)(f), 28.788(4)(1)(b), 28.788(5)(1)(a). This is neither a situation of a truly physically helpless victim nor of a victim terrorized into further submission. Rather, this is a situation in which the victim is conscious of a sudden affirmative act which occurs before consent can be given or refused. Whatever the legislative intent in deleting surprise or concealment, "physical force,” as distinguished from physical violence, is broad enough to support inclusion of a sexual contact which is not consented to, and which is terminated either before the victim can react or simultaneously with the victim’s reaction.
ii
Having construed the word "accomplish” as if it meant "originate” or "begin,” the majority opinion concludes that the Legislature did not intend to criminalize this type of conduct as fourth-degree criminal sexual conduct. Reliance is placed on the fact that the House of Representatives deleted from the definition of fourth-degree criminal sexual conduct the concealment or surprise wording contained in the first-, second-, and third-degree illustrations of force or coercion. Reliance on this historical fact is inappropriate for several reasons. First, the act clearly and repeatedly states that "[f]orce or coercion includes but is not limited to” the circumstances then set forth. This language itself indicates that the circumstances are illustrative and are not intended to be read as limitations or as elements of the offense.
*536Second, as is apparent from the comprehensive scheme of the legislation, the Legislature intended to provide broad protection against unpermitted sexual penetration or contact. The majority opinion would hold that, in order to sustain a conviction of criminal sexual conduct in the fourth degree, the victim must be physically helpless or there must be evidence of resistance. Such a holding squarely conflicts with the express legislative intent that a victim need not resist the actor in prosecutions under the act. MCL 750.520Í; MSA 28.788(9).
Further, that such a result was not intended by the Legislature is indicated by the following example of force referenced under the statute: "When the actor engages in the medical treatment or examination of the victim in a manner or for purposes which are medically recognized as unethical or unacceptable.” MCL 750.520b(1)(f)(iv); MSA 28.788(2)(1)(f)(iv). Clearly, this example requires neither a condition of physical helplessness nor resistance to the actor’s conduct.
To conclude that physical force does not include the conduct which occurred here reintroduces the resistance requirement, when the proper focus ought to be on whether the contact was unpermitted. Most importantly, it is inconceivable to me that the Legislature intended to treat this situation as an assault and battery.1
*537Under the majority opinion, the jury must find that the complainant was physically helpless throughout the sexual contact in order to convict the defendant. The concurrence presumably would find force if the victim had acquiesced in the contact. Either construction has the effect of limiting the full protection afforded by the statute. Where the victim awakes while the contact continues, the protection afforded by the statute is substantially eroded by the majority opinion because of the inability to conclude that sexual contact was with a "physically helpless” person. Protection is eroded by the concurrence because of the inability to conclude that the victim was coerced into submission. Further, because the majority opinion defines "accomplish” as "begin” and because contact through surprise or concealment is not prohibited by the statute, the net effect of both opinions is to provide no protection either to a woman who is the victim of an unlawful sexual contact while she is resting, but not asleep, or to a woman who immediately terminates a sexual contact.
Beyond the result in this case, the reliance by the majority opinion on the rationale of the decision of the California intermediate appellate court in People v Kusumoto 2 carries with it disturbing implications for the continued efficacy of the Michigan act. The majority opinion quotes Kusumoto as follows:
Were we interpreting a common law crime in the present case, we would have no trouble concluding that the essential element of rape and other sexual assaults is the lack of consent and *538that the concept of force "plays merely a supporting evidentiary role.” We deal here, however, with a statute passed by the Legislature which requires that the act be. accomplished "against the victim’s will by means of force . . . .”
"The force to which reference is made is not the force inherent in the act of penetration but the force used or threatened to overcome or prevent resistance by the female.” [Id., 493.]
Whatever the merit of the California court’s interpretation of the California statute, it cannot be concluded that the Legislature of this state intended to continue to define force by measuring the degree of resistance by the victim. Nonresistance is not an element of the offense, although consent would clearly be a total defense. Our statute focuses on the defendant’s behavior and the lack of consent. The use of force, coercion, or other circumstances listed in the act illustrates those circumstances which play "a supporting evidentiary role” in establishing a prima facie case of nonconsent. To conclude that the Legislature intended to permit nonconsensual sexual contact to fall outside the reach of this statute is to distort the intent of the Legislature in spite of words clearly chosen to avoid the very argument adopted in Kusumoto and accepted by the majority opinion.
The conduct prohibited under the code is assaultive conduct against the sexual privacy of another person. The offense is the invasion of that privacy by force, coercion, or other undue advantage.3 The definition of force described under the statute at issue includes not only the traditional concept of *539force involving the overpowering of another’s will, but also a sexual touching brought about involuntarily. So defined, "force” includes either a contact which occurs while the victim is in fear, or a contact which occurs before consent can be given or refused.
CONCLUSION
The defendant was convicted by a jury of using force or coercion to accomplish a sexual contact in violation of the fourth-degree criminal sexual conduct statute, MCL 750.520e(1)(a); MSA 28.788(5)(1)(a). The evidence at trial supports that conviction.
The issue of surprise and concealment as an element of the offense would have been raised had the trial judge instructed that the jury could find that surprise or concealment constituted force or coercion. He did not do so. Instructional error is not claimed, nor is it claimed that there was a variance between the pleadings and the proof. I would reverse the decision of the Court of Appeals and reinstate the judgment of the trial court.
Prior to the enactment of the criminal sexual conduct code, the only penal sections criminalizing the instant category of conduct were the indecent liberties statute which was limited in operation to victims under the age of sixteen. MCL 750.336; MSA 28.568, repealed by 1974 PA 266, and the assault and battery statute, MCL 750.81; MSA 28.276.
The fourth-degree criminal sexual conduct statute expanded the protection against sexual batteries and increased the potential penalty from a ninety-day to a two-year misdemeanor. Today’s decision annuls this protection leaving defendant potentially subject only to a simple assault and battery crime.
*537Further, if the circumstances of this assault are not within the purview of the act, it is clear that the offensive "grab” of intimate parts that occurs between strangers or acquaintances is likewise not protected.
169 Cal App 3d 487; 215 Cal Rptr 347 (1985).
Boyle, The criminal sexual conduct act, 43 Detroit Lawyer 6, 11 (October, 1975).