dissenting, with whom GOLDEN, Justice, joins.
Stare decisis /stériy doáyas/. Lat. To abide by, or adhere to, decided cases.
Blaok’s Law DICTIONARY 1406 (6th ed.1990). I am committed to the doctrine of stare decisis as a matter of responsible appellate jurisprudence. It is the departure from this doctrine by the majority opinion, without specifically overruling mandatory precedent, that moves me to dissent in this case.
Pierson’s conviction in this case should be affirmed, and I dissent from the reversal by the majority premised, as it is, on instructional error. The claim of error in the refusal of the trial court to instruct on Wyo. Stat. § 6-2-304 (1988) is simply sophistry designed to avoid the application of mandatory precedent. The result is antithetical to clear rules established by earlier eases, and the majority opinion adopts the contentions of dissenting justices in those earlier opinions as the correct law, without specifically overruling those cases. We have said:
Our indecent liberties statute clearly proscribes the conduct, sexual intercourse with a minor, engaged in by Ochoa. We have repeatedly interpreted this statute to apply where an adult engaged in sexual intercourse with a minor. Griego [Griego v. State, 761 P.2d 973 (Wyo.1988)], 761 P.2d at 976, citing McArtor v. State, 699 P.2d 288 (Wyo.1985); Auclair v. State, 660 P.2d 1156 (Wyo.1983); Ketcham v. State, 618 P.2d 1356 (Wyo.1980). As we said in Griego, “[tjhese decisions demonstrate that § 14r-3-105 applies, without question, to certain activities.” 761 P.2d at 976. One of those activities is sexual intercourse with a minor. We hold that our indecent liberties statute is not unconstitutionally vague as applied to Mr. Ochoa’s actions.
Ochoa v. State, 848 P.2d 1359, 1363 (Wyo.1993).
In Ketcham v. State, 618 P.2d 1356 (Wyo.1980), this Court did not accept an assertion of implied repeal by implication with respect to Wyo. Stat. § 14-3-105 (1994) and the sexual assault statutes. In light of the premises for the decision, however, the arguments of the dissenting members of the court can best be categorized as dictum. In McArtor v. State, 699 P.2d 288, 293-94 (Wyo.1985) (footnote omitted) (emphasis added), we held:
(d) Appellant contends that the provisions of § 6-2-301, W.S.1977 (§ 6-63.5, W.S.1957) should control over § 11-3-105, W.S.1977 (§ 11-28, W.S.1957) because it is the more specific of the two and they both cover the same subject.
We have often stated that a special statute will govern where a general statute is inconsistent with a special statute pertaining to the same subject matter. City of Rock Springs v. Police Protection Association, Wyo., 610 P.2d 975 (1980); Department of Revenue and Taxation v. Irvine, Wyo., 589 P.2d 1295 (1979); Thomas v. State, Wyo., 562 P.2d 1287 (1977). However, appellant has not furnished us with any authority reflecting support for application of such rule to this instance. And it must be remembered that such is a rule of construction to which resort is had, as with all other rules of construction, only for the purpose of ascertaining legislative intent. Wyoming State Department of Education v. Barber, Wyo., 649 P.2d 681 (1982); Houghton Brothers v. Yocum, 40 Wyo. 57, 274 P. 10 (1929). In this instance, the legislative intent to continue the operative functions of § 14-3-105 (§ 14 — 28) was manifested as noted supra. The propriety of applying any rule of construction to further ascertain legislative intent would seem to be futile.
*1130Beyond that, it is not immediately discernible as to which of the two statutes is the more specific. Sexual intrusion or penetration is an element of § 6-2-304 (§ 6-63.5) but is not a necessary element of § 14-3-105 (§ 14-28). Although the latter statute (at the time of the incident) is not limited to parents, guardians and custodians, the fact that they are specifically mentioned would indicate an intention to place a special onus on those with supervisory authority over minors as appellant had over the victim in this case. Both statutes involve sexual activity, but they are not mutually exclusive. It is not uncommon for two valid statutes to prohibit the same type of conduct, or for the prosecutor to decide under which statute to charge a defendant. Jerskey v. State, Wyo., 546 P.2d 173 (1976); State v. Grider, 74 Wyo. 88, 288 P.2d 766 (1955); see Rules 11 and 12, W.R.Cr.P.
In Campbell v. State, 709 P.2d 425 (Wyo.1985), we dealt only with the definition of the age of a child for purposes of the indecent liberties statute, and the concurring justices merely preserved the position they had espoused in McArtor.
In Rivera v. State, 840 P.2d 933, 943 (Wyo.1992) (emphasis added), we compared the indecent liberties statute to the sexual assault statute and said:
We already have noted that, as to each victim, Rivera was charged with violation of §§ 6-2-302(a) and 14-3-105. These statutes define different crimes. McArtor v. State, 699 P.2d 288 (Wyo.1985). They are intended to suppress different evils; an acquittal and conviction under one does not prevent prosecution under the other. Goodman v. State, 601 P.2d 178 (Wyo.1979). In Baum v. State, 745 P.2d 877 (Wyo.1987), we held there is no violation of a defendant’s fundamental right to not be placed twice in jeopardy under the Fifth Amendment to the Constitution of the United States or under art. 1, § 11 of the Constitution of the State of Wyoming when conviction and punishment on two counts occurs even though both acts were committed during the same encounter with the victim. Under two separate statutes, two separate criminal acts can be charged, tried, and punished.
Our cases demonstrate, without any equivocation, that the offenses proscribed by Wyo. Stat. § 6-2-304 and Wyo. Stat. § 14-3-105 are distinct from one another. The majority opinion blurs that distinction and suggests that a defense under Wyo. Stat. § 6-2-304 may constitute a partial defense under Wyo. Stat. § 14-3-105, despite our clear rulings that consent is not a defense under that statute. It is apparent that a clear rule of law emanating from McArtor has been undercut to a degree that McArtor is overruled. Contrary, to the majority opinion, there was no doubt left by the jury instructions as to the circumstances under which Pierson could be found guilty. Sexual intercourse with a child is a violation of the indecent liberties statute. That societal position is not affected by the defense of consent under the sexual assault statutes, and there is no valid purpose to be accomplished in this case, other than attempting to rescue Pierson from the consequences of his conduct proscribed by the indecent liberties statute.
The trial judge in this instance correctly followed McArtor in instructing the jury. In effect; he is now being advised to assist the defendant in his argument by instructing the jury that while consent is no defense to the offense charged, it could be a defense to a different offense that was not charged. That result is not consistent with our prior law, and simply leads to confusion in the trial court. Further, it reaches the charging decisions by the prosecuting attorney, a matter that we consistently have held to be protected from the judicial department by the doctrine of separation of powers.
I would affirm Pierson’s conviction for the offense of indecent liberties committed against a child.