(dissenting). Langworthy was convicted of second-degree murder and Lundy was convicted of first-degree criminal sexual conduct. Their appeals were consolidated for argument.
Langworthy and Lundy contend that the offenses of which they were convicted are specific-intent *654crimes, that voluntary intoxication may negative that intent and that the trial judges, sitting without juries, erred in refusing to consider the defense of voluntary intoxication. We agree in both cases and would remand for new trials.
I
The critical element of second-degree (common-law) murder is malice aforethought.1 Malice aforethought, for purposes of second-degree murder, is established by evidence tending to show that the defendant acted with either "the intention to kill, the intention to do great bodily harm, or the wanton and willful disregard of the likelihood that the natural tendency of [his] behavior is to cause death or great bodily harm”.2
In People v Garcia, 398 Mich 250, 259; 247 NW2d 547 (1976), this Court recognized, in the context of first-degree murder, that intent to kill is a specific intent which voluntary intoxication can negate. Similarly, malice aforethought based upon intent to inflict great bodily harm is, by definition, a specific intent although there has not been any need to rule thereon until now. The opinion of the Court seems to agree.
The reason the Court gives for its conclusion that second-degree murder is not a specific-intent offense is that the malice requirement may be satisfied by showing "willful and wanton disregard”. This ignores that it is rare for a person to be charged with second-degree murder on the theory that he acted with willful and wanton disregard. Where the evidence does not support a *655finding of intent to kill or to inflict great bodily harm, the charge is usually voluntary manslaughter and not second-degree murder. It is letting the tail wag the dog to classify second-degree murder as a general-intent crime because willful and wanton disregard may in a few isolated cases be the prosecution’s theory.
We should adopt the approach this Court takes today in People v Woods, ante, p 581, and look realistically at the prosecution’s theory in the instant case of Langworthy. In Woods, this Court found that the judge’s instruction on implied malice was erroneous, but, nevertheless, concluded on the evidence presented that the error was harmless:
"The court instructed the jury that either express or implied malice was sufficient to find malice, and since malice could not have been implied under the evidence presented and evidence clearly establishing express malice was believed, the instruction on implied malice was not prejudicial.” Id.
A court which can look to the evidence to find harmless error should be able to look to the record to determine whether the offense charged is in law and fact a specific-intent offense.3 Not to do so is to appear to apply a double standard.
There are indeed some offenses (e.g., common-*656law rape, see part II infra) which have not been deemed to include an element of specific intent. It is not asserted that second-degree murder is such an offense. The intents to kill or to inflict great bodily harm are specific intents. It cannot thus properly be said that second-degree murder does not include a specific intent. It can only be said that a person may — in some other case — be convicted of second-degree murder without a finding of specific intent upon a finding of wanton and willful disregard.
To be sure, the intoxication defense deserves legislative consideration. Until the Legislature acts, we should apply the judicially crafted specific-general-intent distinction on a reasoned basis. We should not ignore that where second-degree murder is charged, the people’s theory is almost universally intent to kill or to inflict great bodily harm and only rarely if ever willful and wanton disregard. It is hypertechnical to classify second-degree murder, which has "intent to” elements, as a general-intent crime because in a rare case a person might be convicted on a theory of willful and wanton disregard.
In the instant case, the prosecution did not claim willful and wanton disregard. The people rather introduced evidence tending to show that Langworthy killed with premeditation, deliberation, and malice. The judge found "that the defendant consciously and knowingly shot the deceased intending to kill him”. Langworthy was thus convicted on the basis of specific intent to kill, and voluntary intoxication should be a defense.4_
*657II
In Lundy, the judge declared that "criminal sexual conduct first degree * * * involves general intent and that voluntary intoxication or sniffing glue * * * is not an excuse of the offense”.
The general- specific-intent distinction is a formalistic one which turns on whether an "intent to” is an element of the offense. Specific-intent crimes include larceny, because an element of the offense is felonious intent to deprive the owner permanently of his property; robbery, because it is larceny with force; first-degree murder, because the malice must be express (intent to kill or to do great bodily harm); burglary, because intent to commit a felony is an element.5
The definition of common-law rape did not articulate a specific intent. Rape was the carnal knowledge of a woman by force and against her will.6 Because the common-law definition did not in so *658many words describe a particular intent, rape was generally regarded as a general-intent crime.
The Legislature has now repealed the common-law offense and substituted its own definitions in painstaking detail. The common-law definition of rape, therefore, is no longer the law of this state. We now must determine, as a matter of statutory construction, whether the statutory definitions encompass an element of specific intent.
We would construe the provision of the statute establishing the offense of first-degree criminal sexual conduct as requiring a specific intent because that appears to be the most reasonable construction of the statute read as a whole.
The critical words in the statute are "sexual contact” and "sexual penetration”. The definition of "sexual contact” manifestly requires a specific intent:
" 'Sexual contact’ includes the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification.” MCL 750.520a(g); MSA 28.788(1)(g).
While the definition of "sexual penetration” does not explicitly state a specific intent:
" 'Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal-openings of another person’s body, but emission of semen is not required.” MCL 750.520a(h); MSA 28.788(l)(h),
*659this was apparently because non-intentional penetration is unusual and it would therefore have been supererogatory to spell out "intentional” as part of the definition of penetration.
Given the structure of the statute, we would construe the statutory definition of "sexual penetration” as requiring the intent to penetrate. Not to so construe the statute would, somewhat anomalously, mean that persons who, without specific intent, "sexually penetrate” are fully criminally responsible although those who, without specific intent, "sexually contact” are free of criminal responsibility.7 Moreover, as one author put it, speaking of the common-law offense, "the actual intention in rape is as specific as can be imagined”.8
Because the statutory offense of first-degree criminal sexual conduct requires the specific intent to penetrate,9 and because voluntary intoxication is a defense to specific-intent crimes, the judge *660erred in not considering whether Lundy was intoxicated to such an extent as to negative the mental element of intent.
HI
Robberies and burglaries, most often committed by persons who have a history of criminal behavior and generally planned in advance of their commission, are specific-intent crimes. The defense of voluntary intoxication may thus be interposed by the predatory drunk who commits a planned robbery or burglary.
Most murders and a significant percentage of .sexual offenses are committed by persons who have no history of predatory crime and who act impulsively in an agitated and, if intoxicated, a beclouded state of mind. Assuming that there is justification for a defense of voluntary intoxication, a rational legal system would allow a person who has no prior criminal history, but loses control while intoxicated, to raise the defense, at least in mitigation, if it allows a person who has a history of predatory behavior to do so. While it appears that, in the instant cases, the defendants may have prior histories of predatory offenses, the rule which this Court announces in these cases will apply in a substantial number of cases in which the defendant does not.
We would reverse and remand for new trials.
Kavanagh, J., concurred with Levin, J. Riley, J., took no part in the decision of this case.People v Aaron, 409 Mich 672, 728; 299 NW2d 304 (1980).
Id.
In United States v Nix, 501 F2d 516 (CA 7, 1974), the Court of Appeals held that the crime of escape included a mental element which voluntary intoxication could negate. In reaching that conclusion, the court quoted from Intoxication as a Criminal Defense, 55 Colum L Rev 1210,1218 (1955):
"Categorizing all crimes as either having 'general’ or 'specific’ intent seems too mechanical and often forecloses evaluation by the court of the important consideration involved, i.e., what elements are involved in the crime and whether the prosecution has satisfactorily established them.”
See State v Saunders, 102 Ariz 565, 568; 435 P2d 39, 42 (1967), quoting State v Hudson, 85 Ariz 77; 331 P2d 1092 (1958), in which defendant’s conviction of second-degree murder was reversed:
"[WJhile mere drunkenness does not excuse an offense it may produce a state of mind in the accused which incapacitates him from *657forming or entertaining a malicious intent or that 'malice aforethought’ which is an essential element of murder in the second degree. Such voluntary intoxication or drunkenness is to be taken into consideration in determining the existence or non-existence of malice aforethought, which distinguishes murder from manslaughter”.
In People v DeMino, 277 AD 1121; 100 NYS2d 982, 983-984 (1950), the Appellate Division of the New York Supreme Court, Second Department, said:
"Evidence was adduced on the trial that appellant had been drinking, and the jury might have concluded therefrom that he was intoxicated at the time of the commission of the crime. Under such circumstances it was error to refuse to charge the substance of section 1220 of the Penal Law, which would have permitted the jury to consider such evidence as bearing on appellant’s intent to kill.”
It appears that in New York specific intent to kill is an essential element of second-degree murder.
See People v Kelley, 21 Mich App 612; 176 NW2d 435 (1970); People v Garcia, 398 Mich 250, 259; 247 NW2d 547 (1976).
Perkins, Criminal Law (2d ed), p 152; Clark & Marshall, Crimes (7th ed), § 11.01, p 752.
The effect of the distinction is to free from criminal responsibility those who sexually "contact” without specific intent, because intoxicated or narcotized, but to hold fully responsible those who sexually "penetrate” albeit in the same beclouded state of mind.
Hall, General Principles of Criminal Law (2d ed, 1960), p 143.
See LaFave & Scott, Criminal Law, § 45, pp 343, 344:
"One is not guilty of rape, or assault with intent to rape, if he is intoxicated to such an extent that he is unable to entertain the intent to have sexual intercourse.
"It is sometimes stated that intoxication can negative a 'specific intent’ which the crime in question may require (meaning some intent in addition to the intent to do the physical act which the crime requires), but it cannot negative a crime’s 'general intent’ (meaning an intent to do the physical act — or, perhaps, recklessly doing the physical act — which the crime requires). Some cases therefore have held that voluntary intoxication cannot be a defense to rape even though it blots out the intent to have intercourse, since that intent is a general intent and not a specific intent. But this is wrong on principle, for if intoxication does in fact negative an intention which is a required element of the crime (whether it be called specific intent or general intent), the crime has not been committed.” (Footnotes omitted.)