dissenting.
Respectfully, I dissent. We granted the State’s petition for discretionary review to determine whether, in a prosecution under V.T.C.A, Penal Code, Section 22.011(a)(2) (hereinafter referred to as “Section (a)(2)”), a defendant must claim the complainant consented as a prerequisite to raising the promiscuity defense under V.T.C.A, Penal Code, Section 22.011(d)(1) (hereinafter referred to as “Section (d)(1)”).
The State charged appellant with violating V.T.C.A., Penal Code, Section 22.011(a)(2)(A), which prohibits an adult from intentionally or knowingly engaging in certain defecribed sexual conduct with a child. The evidence in this case indicates the complainant’s mother “sold” the complainant to appellant, who also “sold” the complainant to other men. Hernandez v. State, 754 S.W.2d 321, 322-23 (Tex.App.—Houston [14th Dist.] 1988). The complainant testified she “did not resist” appellant’s sexual advances. Id. at 322. Appellant tried to introduce evidence at trial of the complainant’s prior sexual conduct with other boys in an attempt to raise the promiscuity defense under Section (d)(1); however, the trial court refused to admit this evidence unless appellant claimed the complainant consented to the charged offense, which appellant did not do. Id. at 324.
The Court of Appeals held Section (d)(1) entitled appellant to raise the promiscuity defense without raising the issue of the complainant’s consent. Id. The Court of Appeals also noted the newer statutory scheme “does not protect sexually ‘promiscuous’ girls unless the State can allege forcible rape in the indictment and prove beyond a reasonable doubt the girl did not consent.” Id. at 326.
Appellant argues Section (d)(1) does not literally require consent as a prerequisite to *911raising the promiscuity defense, and I agree. However, in ascertaining the legislative intent of a statute, we are not required to apply the statute literally if that would lead to absurd consequences not possibly intended by the Legislature. See Boykin v. State, 818 S.W.2d 782, 785-86, 786 n. 4 (Tex.Cr.App.1991). Under such circumstances, we consider extratextual factors such as the legislative history of the statute and prior case law to arrive at a fair and sensible interpretation of the statute. See id.; compare State v. Oliver, 808 S.W.2d 492, 495 (Tex.Cr.App.1991).
The majority holds appellant was entitled to raise the promiscuity defense under Section (d)(1) without claiming the complainant consented. The majority says its interpretation of the statute is based on a plain reading of the statute, and would not lead to absurd results. With the majority’s conclusion that its interpretation of the statute would not lead to absurd results, I respectfully disagree.
The main rationale of the majority opinion is that the State can convict someone of sexually assaulting a 14 to 17 year-old, promiscuous child by alleging and proving lack of consent in a prosecution under V.T.C.A., Penal Code, Section 22.011(a)(1) (hereinafter referred to as “Section (a)(1)”).1 Maj. at 909. However, I am aware of no authority requiring the State, when presented with a fact situation like here, to charge under Section (a)(1). Rather, charging under Section (a)(2) appears to be the method intended by the Legislature since the legislature expressly made that section applicable to children who are sexually assaulted by adults. Since Section (a)(2), by its very terms, is applicable to children, it is not unreasonable for the State to charge an adult, who engages in sexual conduct with a child, under Section (a)(2). Moreover, based on constitutional concerns, I am not sure about this Court assuming the role of telling the State how to charge a crime under these circumstances. See, e.g., Meshell v. State, 739 S.W.2d 246, 252-58 (Tex.Cr.App.1987).
Also, under the majority’s interpretation, in those situations where a defendant asserts the promiscuity defense under Section (d)(1), that will be the main defensive issue joined between the defendant and the State, and the main defensive issue submitted to the jury. See V.T.G.A., Penal Code, Section 2.03(c). The jury will be asked whether it has a reasonable doubt on the complainant’s promiscuity, and it further will be instructed that, if it does, it should acquit. See V.T.C.A., Penal Code, Section 2.03(d). However, I fail to see the relevance of evidence of a complainant’s promiscuity in a sexual assault prosecution under Section (a)(2) unless the defendant makes the complainant’s consent an issue in the case. See generally Montgomery v. State, 810 S.W.2d 372, 386-97 (Tex.Cr.App.1990) (op. on reh’g).
Finally, one consequence of the majority’s interpretation of Section (d)(1) is that in a future prosecution under Section (a)(2), a defendant, who engages in sexual conduct with a 14-year-old nonconsenting, promiscuous child, will be entitled to an acquittal, because consent will be irrelevant. These children will become “fair game” for older, more experienced adults. See Hernandez, 754 S.W.2d at 326. And, here, this appellant will be entitled to an acquittal, if the jury finds the complainant was promiscuous, even though she may not have consented. The Legislature clearly did not intend these results. See Boykin, 818 S.W.2d at 785.
In addition to the foregoing, the legislative history of the statute strongly supports the proposition that promiscuity is not relevant unless consent is at issue. The Legislature codified the offense commonly known as “statutory rape” in V.T.C.A., Penal Code, *912Article 1183 (repealed).2 Prior law deemed a child legally incapable of consenting to sexual conduct with an adult. Except, Article 1183 provided that a child’s “unchaste character” was a defense if the child was 15 years or older, and the defendant claimed she consented. In these circumstances, Article 1183 literally required consent as a prerequisite to raising the “unchaste character” defense, and our cases construing Article 1183 held that evidence of “unchaste character” was irrelevant when consent was not in issue. See, e.g., Wright v. State, 527 S.W.2d 859, 862-63 (Tex.Cr.App.1975).
In 1974, Article 1183 was repealed and recodified in V.T.C.A., Penal Code, Section 21.09 (repealed).3 V.T.C.A., Penal Code, Section 21.09(b) revised the unchastity defense of Article 1183 because courts had interpreted it to include one prior act of sexual intercourse even with the defendant in the current prosecution, and it did not take into account “the young female who made a single mistake.” See Section 21.09, Practice Commentary; Hernandez, 754 S.W.2d at 326, n. 3. Literally, Section 21.09(b) provided a defense if the child was 14 years of age or older and previously engaged in promiscuous sexual conduct. Section 21.09(b), like current Section (d)(1), did not literally require consent as a prerequisite to raising the promiscuity defense.
This Court never addressed whether consent was a prerequisite to the promiscuity defense under Section 21.09(b); however, in a related case, this Court stated that in enacting Section 21.09 “it appears that the Legislature intended to carry forward the general provisions relating to the prior ‘statutory rape’ law.” Vasquez v. State, 622 S.W.2d 864, 865 (Tex.Cr.App.1981). The Houston Court of Appeals, Fourteenth District, decided that Section 21.09(b) required a defendant to raise consent as a prerequisite to the promiscuity defense. Moore v. State, 703 S.W.2d 762, 764 (Tex.App.—Houston [14th Dist.] 1985, no pet.). Therefore, before enactment of the current sexual assault statute, the statutes and case-law deemed only a small class of children legally capable of consenting to sexual activity with an adult, and, for this class of children, evidence of their “promiscuity” was irrelevant when consent was not at issue.
All prior “rape” crimes were reorganized and recodified into the current sexual assault statute — V.T.C.A., Penal Code, Section 22.-011; the .only changes relating to children were to make the statute gender-neutral and to more specifically describe the prohibited sexual acts. When Senator Whitmire introduced the second reading of House Bill 2008, which contained the proposed Section (d)(1), before the Senate Jurisprudence Committee, he stated it was “not the intent of this statute to change any substantive law other than to change the name.... of the offense to better describe the act.” The object sought to be obtained by Section (a)(2) obviously is to protect children from more experienced adults by deeming most children legally incapable of consent. The most significant substantive change, relating to children, in the statutes I can see actually narrowed the class of children against whom evidence of prior sexual conduct can be introduced, without making consent irrelevant to this class of children.
For the foregoing reasons, I respectfully dissent. I would reverse the Court of Appeals and hold the Legislature intended Section (d)(1) to require a defendant to raise consent before evidence of a complainant’s promiscuity becomes relevant. See V.T.C.A., Penal Code, Section 2.03.
CAMPBELL, WHITE and BAIRD, JJ., join this dissent.. Section (a)(1) prohibits a person from intentionally or knowingly engaging in various sexual conduct with another person, without that person’s consent. The evidence here indicates the complainant may have "consented” because she did not resist appellant’s sexual advances. Of course, the issue of consent is not developed in the record since appellant did not claim the complainant consented. Rather, appellant, in effect, claims he is entitled to an acquittal because the complainant is promiscuous even though she may not have consented. A majority of this Court interprets the statute as making consent irrelevant in a prosecution under section (a)(2), with the only relevant defensive issue being the complainant’s promiscuity.
. Repealed by Acts 1973, 63rd Leg., p. 991, ch. 399, Section 3(a), eff. Jan. 1, 1974.
. Repealed by Acts 1983, 68th Leg., p. 5321, ch. 977. Section 12, eff. Sept. 1, 1983. Current version codified in V.T.C.A., Penal Code, Section 21.011.