OPINION
APODACA, Judge.Defendant, a psychologist, appeals his jury convictions on four counts of second degree criminal sexual penetration (CSP II) and five counts of third degree criminal sexual penetration (CSP III). The indictment charged that defendant committed CSP II or CSP III on three adult patients. The trial court granted defendant’s motion for a separate trial with respect to each victim and the embezzlement charge. The state elected to proceed on counts of CSP II and CSP III involving only one of the victims. Although defendant raises twelve issues on appeal, his essential challenges to his convictions are based on seven basic arguments, one of which is that no crime was committed under New Mexico law. We hold that defendant’s conduct did not constitute the crimes of CSP II or CSP III and reverse the convictions, with instructions that the criminal charges be dismissed and defendant discharged. Because of our disposition, we need not address defendant’s other issues.
Defendant contends that consensual sex between a therapist and his adult patient is not a crime in New Mexico because, unlike other states, our state legislature has not enacted a criminal statute concerning sexual relations specifically between a therapist and a patient. See, e.g., Minn.Stat. § 609.345(l)(j) (1990) (a psychotherapist who engages in sexual contact with a patient or former patient, even with the latter’s consent, is guilty of criminal conduct if the contact occurred by means of therapeutic deception).
Defendant argues that, although the crime of criminal sexual penetration can be committed by a therapist, the state, in this appeal, erroneously maintained that every instance of sexual contact between a therapist and patient, whether or not consensual in nature, constitutes unlawful sexual penetration. Defendant argues that the state, in so contending, strains the statutory language in an attempt to make it fit the facts of this case. For defendant’s actions to rise to the level of the commission of a crime, defendant insists the legislature must enact a statute specifically prohibiting sex between a therapist and his patient. We agree.
CSP II and CSP III require the state to prove that the offense of criminal sexual penetration was committed through the use of force or coercion. NMSA 1978, § 30-9-11 (Cum.Supp.1990). In the context of this case, force or coercion means the perpetration of criminal sexual penetration “when the perpetrator knows or has reason to know that the victim ... suffers from a mental condition which renders the victim incapable of understanding the nature or consequences of the act.” NMSA 1978, § 30-9-10(A)(4) (Repl.Pamp.1984).
Defendant’s argument focuses on the state’s use of a therapy phenomenon known as transference to prove that the victim suffered from a mental condition rendering him incapable of understanding the nature and consequences of the sexual acts with defendant. According to expert testimony presented at trial, “transference,” as applied to a therapist-patient relationship, is the emotional response that the patient in therapy has toward the therapist. Under the phenomenon, the patient unconsciously attributes to the therapist those feelings that may have been suppressed toward others close to the patient, such as parents.
The state asserts that a therapist is easily able to detect when transference has occurred in therapy. “ ‘Inappropriate emotions, both hostile and loving, directed toward the [therapist] are recognized by the psychiatrist as constituting ... the transference.’ ” L.L. v. Medical Protective Co., 122 Wis.2d 455, 461, 362 N.W.2d 174, 177 (Ct.App.1984) (quoting M. Heller, Some Comments to Lawyers on the Practice of Psychiatry, 30 Temp.L.Q. 401, 401-02 (1957)). The development of the transference may be marked by signs that the patient identifies with the therapist, such as learning to think, style, and model himself after the therapist. Id. 122 Wis.2d at 461, 362 N.W.2d at 177 (quoting D. Dawidoff, The Malpractice of Psychiatrists 6 (1973)). Dr. Martin Orne, a psychiatrist-psychologist who testified for the state, gave an example of this emulation when he observed one of his patients change his brand of cigarettes to an offbeat foreign brand used by Dr. Ome. In this appeal, according to evidence adduced at the trial, the victim’s purchase of a Fiat automobile similar to the one driven by defendant was recognized as a sign that transference was occurring in the therapeutic relationship.
The state’s theory, pursued at trial, was that defendant committed the offenses of CSP II and CSP III on his adult patient, while acting as a psychotherapist, utilizing force or coercion. The state also contended at trial that defendant overcame the will of his patient, knowing that the patient experienced a “transference phenomenon,” thus submitting to defendant’s sexual advances.
Defendant’s contentions on appeal are premised on a theory that transference occurs in every therapeutic relationship. He argues that, should this court accept transference as a means of establishing force or coercion under the criminal sexual penetration statute, the result will be unconstitutional. Because of the basis for our disposition of this appeal, however, our holding need not reach constitutional dimensions. Instead, we find it necessary only to construe the legislative language of our CSP statute.
At trial, to prove the requisite “force or coercion” under the transference theory, the state relied heavily on the testimony of expert witnesses. Dr. Orne testified that a patient cannot be ready, willing, and able to consent to a sexual relationship with his therapist because it is not an equal relationship. Dr. Orne concluded that a patient does not and cannot understand the consequences of the act. The state also presented the testimony of Dr. Carl Adams, a psychologist. Dr. Adams testified that the victim’s mental condition left him unable to understand the consequences of engaging in sex with defendant, his therapist. Dr. Adams stated that patients are not capable of consenting to sexual relations in therapy and that it is impossible for an individual to fully appreciate what will happen to him at a later date. He further testified that, because of the nature of the relationship between a therapist and his patient, the transference phenomenon, and the view a patient has of his therapist as an authority figure, the patient cannot consent and cannot know the long-term consequences of having sex with his therapist.
The specific question we must address in this appeal is whether the transference phenomenon alone, and the expert testimony explaining it as it applied to defendant’s relationship with the victim, was sufficient to prove the existence of the “force or coercion” necessary to convict defendant under our CSP statute. We first observe that there is no contention that this appeal involves any mental condition rendering the victim incapable of understanding the consequences of the act, other than what may be attributed to the transference phenomenon. Additionally, this appeal does not involve CSP specifically under Section 30-9-11(B)(1) (when the perpetrator is in a position of authority over the victim), because that type of CSP applies only to victims between the ages of 13 and 16, a situation not present here.
Based on basic statutory construction principles, we do not believe the legislature intended the transference phenomenon and the expert testimony at issue here as sufficient to bring the conduct of defendant within the prohibitive grasp of the CSP statute, at least in the absence of more precise or clearer statutory language. See State v. Bybee, 109 N.M. 44, 46, 781 P.2d 316, 318 (Ct.App.1989) (“it is a fundamental rule that crimes must be defined with appropriate definiteness”).
We also base our holding on the proposition that penal statutes must be strictly construed, and any doubts about their construction must be resolved in favor of lenity. State v. Bybee; State v. Keith, 102 N.M. 462, 697 P.2d 145 (Ct.App.1985). Additionally, penal statutes must be of sufficient certainty that a person will know that his act is criminal when he commits it. State v. Collins, 80 N.M. 499, 458 P.2d 225 (1969). We cannot be certain that even a trained psychologist would be on notice, under the statutory language here, that his having sexual relations with a consenting patient would be deemed criminal in nature under Sections 30-9-10 and -11. Cf Minn. Stat. § 609.345(l)(j) (sexual contact between psychotherapist and patient is criminal sexual conduct if the contact occurred by means of therapeutic deception).
There are two elements of the type of CSP involved in this appeal that concern us. First is the “mental condition”; next is the “understanding the nature or consequences” of the act. See 30-9-10(A)(4). To read either of these elements as the state suggests would open the door, we believe, to harmful results. If the requisite “mental condition” was satisfied by existence of the transference phenomenon, would it likewise be satisfied by a patient’s intelligence level or his or her desire to be dominated? If the requisite “understanding of the consequences” was satisfied by the evidence at trial here that the victim did not realize the impact the sexual relations with defendant would have on him, would it likewise be satisfied by any sexual partner’s second thoughts after the occurrence? One need only pose these questions to realize immediately the weakness in the state’s reliance on the transference phenomenon to prosecute defendant under the CSP statute. Indeed, we consider the state’s argument on the phenomenon too novel in nature to construe the statute in the broad-brush manner advocated by the state.
Our disposition of this appeal is dictated by the state’s choice to prosecute defendant under our CSP statute, rather than under some other pertinent statute. We observe that, in prosecuting defendant under the CSP statute based on the theory of the transference phenomenon, the state took the risk of stepping too far afield and, as a result, we conclude that it exceeded the limits of the statute’s application. As a reviewing court,
we [must] take care we do not blur those often fine-line junctures of criminal elements, where one crime ends and another begins. Ultimately, it is the prosecutor who will discretionarily determine what criminal charge to bring against a particular defendant; where one crime does not fit, another may. But let us not lose sight of the constitutional risks involved in applying a criminal statute with too broad a brush.
State v. Sanchez, 105 N.M. 619, 623, 735 P.2d 536, 540 (Ct.App.1987) (Apodaca, J., specially concurring).
In summary, we hold that defendant’s conduct did not constitute the crime of CSP under the pertinent statutory language. As we have stated before in the context of other cases, if the legislature desires to make psychologist/patient sex a crime, it can certainly do so, subject only to constitutional limitations. But doing so requires legislative therapy, not judicial surgery. See Garrison v. Safeway Stores, 102 N.M. 179, 692 P.2d 1328 (Ct.App.1984). We are limited in our review to construing the statutory language to arrive at the legislative intent. We reverse the convictions and remand to the trial court with instructions to dismiss the criminal charges and to discharge defendant on the CSP counts.
IT IS SO ORDERED.
DONNELLY, J., concurs. BIVINS, J., specially concurring.