dissenting.
The court today decides that the constitution permits the state to criminalize consensual petting by teenagers. Further, it holds that the legislature intended to make it a class 3 felony for a sixteen-year-old boy to touch, with consent, the breast of a fourteen-year-old girl.7 Believing the court is incorrect on both points, I dissent.
The ramifications that must follow the majority’s opinion illustrate its error. When prosecuted and convicted under A.R.S. § 13-1404, teenagers who have done no more than pet and caress must ever after register under Arizona’s sex offender law. See A.R.S. § 13-3821. Every social worker, counselor, teacher, doctor, psychologist, nurse, or parent in Arizona who has been told of consensual petting by teenagers must report such “offenders” to the police or DES. A.R.S. § 13-3620(A). If they fail to report, they themselves face prosecution. A.R.S. § 13-3620(J). One shudders to think of the number of young men and women8 who must now live with the knowledge that they committed felonies and are subject to prosecution should they be found out. It boggles the mind to think of parents, having been told by their children about petting, rushing to call Child Protective Services “forthwith” and following up “by a written report within 72 hours.” See A.R.S. § 13-3620(A).
All of this illustrates, as the prosecutor conceded at oral argument, that this statute could not be uniformly enforced. Evidently acknowledging the same problem, the trial judge stated that the legislature must have anticipated that prosecutors would use discretion in determining which cases involving consenting teenagers were to be pursued. See Minute Entry filed October 28, 1988. Further, he believed the great discretion vested in the juvenile system would permit the judge to weigh all factors in fashioning an appropriate disposition. Id. The power of the police or the courts to use discretion and selectively enforce statutes is not a factor favoring constitutionality. Grayned v. City of Rockford, 408 U.S. 104, 109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972).
As the court ably points out, the legislature has very broad authority to determine what conduct is criminal and to enact laws to proscribe it, even if such laws are unwise. At 28 and 33, 790 P.2d at 726 and 731. The constitution, however, does draw a line limiting the government’s power. This statute, interpreted to criminalize petting between consenting teenagers, goes beyond that line. In my view, neither law nor common sense permits this court to affirm the finding that this boy was guilty of sexual abuse.
A. The Statute Violates an Acknowledged Right of Sexual Privacy
The majority concedes that the United States Supreme Court has declared that the federal constitution protects a right of sexual privacy even for minors. At 30, 790 P.2d at 728 (citing cases in which the Court extended the right to minors). The Court has held that the right of privacy is guaranteed by the due process clause of the fourteenth amendment. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The majority finds this doctrine inapplicable to the present case because “the state has a significant interest in proscribing sexual conduct between minors.” At 31, 790 P.2d at 729 (emphasis added).
The state certainly has a strong interest, but in dealing with this constitutionally protected area, the majority uses broad strokes when it is required to draw careful lines. The phrase “sexual conduct” is extremely broad. This court recognizes, as *36we all must, that “sexual conduct among ... teenagers is not uncommon.” State v. Bartlett, 164 Ariz. 229, 235, 792 P.2d 692, 698 (1990). Kissing is “sexual conduct.” If the state can turn petting teenagers into class 3 felons, presumably its “significant interest” would also permit it to adopt statutes turning those who kiss into class 4 felons, those who caress into class 5 felons, and those who hold hands into class 6 felons. If the constitution forbids this, the majority fails to acknowledge it.
The majority instead struggles with the doctrines of vagueness and overbreadth in dealing with the constitutionality of the statute. It holds these concepts inapplicable, but ignores the constitutional right to sexual privacy that applies even to teenagers. As the United States Supreme Court stated:
Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.
Planned Parenthood v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 2843, 49 L.Ed.2d 788 (1976).
Of course, the state has “somewhat broader authority to regulate the activities of children than of adults.” Id.; At 30-31, 790 P.2d at 728-729. Given the dangers inherent in sexual intercourse and the problem of teenage pregnancies, the state has criminalized sexual intercourse even between consenting unmarried minors. See Michael M. v. Superior Court, 450 U.S. 464, 471-72, 101 S.Ct. 1200, 1205, 67 L.Ed.2d 437 (1981); but see Carey v. Population Seros. Int’l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (striking down statute prohibiting sale of non-medical contraceptive devices to minors). For obvious reasons, the state may criminalize non-consensual sexual activity of any kind. Consensual teenage handholding, kissing, and petting fall on the other side of the line. Attempts to criminalize them should be held invalid as an infringement on protected individual rights. Such activities are not to be regulated through criminal prosecution. See Griswold.
As for the state’s “strong interest in the ethical and moral development of its minors” (At 31, 790 P.2d at 729), I believe the majority again paints too broadly. Of course, the state has such an interest, but morality, especially sexual morality, is something that must be taught as a matter of ethical and religious principles demonstrated and taught in homes and religious institutions. For children like the ones involved in this case,9 the state must surely have some better method of teaching morality than confinement to a penal institution. Arizona’s criminal justice system has yet to demonstrate much success in teaching ethics and morals. We cannot justify infringement on protected individual rights predicated on the illusion that the legislature has decided that morality will be learned in penal institutions.
B. Legislative Intent
Finally, in my view, it was not even necessary for the court to reach any of these constitutional issues. The majority concludes that the legislature intended the construction it gives the statute. At 32-33, 790 P.2d at 730-731. The legislative record is silent and provides no support for this conclusion. The majority rejects the interpretation suggested by the juvenile. Applying what it calls “fundamental rules of statutory construction,” it assumes the legislature must have intended that the words of the statute be strictly applied. In the majority’s view, the language is “precise and leaves no room for interpretation.” At 32, 790 P.2d at 730. Justice Holmes cautioned long ago against pressing the words of a statute to their “grammatical extreme.” Tyson and Brother v. Banton, 273 U.S., 418, 445-46, 47 S.Ct. 426, 433, 71 L.Ed. 718 (1927) (Holmes, J., dissenting).
I should have thought it an even more fundamental rule of statutory construction that the legislature be presumed not to have intended absurd or grossly unjust results. See City of Phoenix v. Superior Court, 144 Ariz. 172, 177, 696 P.2d 724, 729 *37(Ct.App.1985). Surely, the legislators did not intend that teenagers engaged in consensual petting be transformed into felons subject to prison sentence. I cannot believe they intended that parents, teachers, and doctors would be required, under threat of prosecution, to report teenagers for petting.
I would conclude, instead, that the legislature meant to reach a constitutional, sensible result. I would hold that when applied to cases such as this, the statute can be interpreted only to criminalize conduct that was not consensual or that was deviant or aberrational. The majority tactfully provides the legislature with a road map as to how to draft a sensible statute. At 33-35, 790 P.2d at 731-733. It would have done better to interpret the statute in a common sense manner, thus leaving the legislature the option of explicitly stating that it desires to turn all consensually petting teenagers into felons. If the statute cannot be sensibly interpreted, I would hold it unconstitutional as an invasion of constitutionally protected rights.
I therefore must dissent.
GORDON, Chief Justice, concurs in the dissent.. Presumably, the statute covers consensual contact with clothed or unclothed female breasts. See A.R.S. § 13-1401(2) ("Sexual contact" means any direct or indirect fondling or manipulating of ... female breast.”).
. Presumably, if the girl had responded and her hands had wandered, she, too, could be branded as a sex offender under A.R.S. § 13-3821. If the boy had also been fourteen years and eleven months old, the girl could have been prosecuted as a class 3 felon, even if he had consented.
. Both children were, at least to some degree, emotionally or mentally disabled.