(dissenting). I believe the trial court erred in failing to quash the information pursuant to defendant’s motion timely made prior to trial.
Defendant was charged with third-degree criminal sexual conduct, MCL 750.520d(l)(a); MSA 28.788(4)(l)(a), which provides:
(1) A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exists:
(a) That other person is at least 13 years of age and under 16 years of age.
Both third-degree criminal sexual conduct and *647first-degree criminal sexual conduct utilize the statutory definition for the phrase "sexual penetration” contained in MCL 750.520a(l); MSA 28.788(1):
"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.
The amended information charged that defendant engaged in sexual penetration to-wit: fellatio with another person who was fourteen years of age. The only evidence of sexual penetration presented at the preliminary examination held on May 10, 1985, was (1) that defendant touched the victim’s penis and (2) "he kissed me there.” That establishes contact but not penetration. Another panel of this Court has recently explored this issue. In People v Harris, 158 Mich App 463, 469; 404 NW2d 779 (1987), the Court noted the definition of fellatio:
That is defined in Dorland’s Illustrated Medical Dictionary, 23d ed, as: "The act of taking the penis into the mouth.” Obviously, by definition, fellatio includes the necessity of a penetration. Webster’s New Collegiate Dictionary indicates similarly that the word indicates "to suck” or "oral stimulation of the penis.”
MCL 750.520a(k); MSA 28.788(l)(k) defines sexual contact as follows:
(k) "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 *648reasonably be construed as being for the purpose of sexual arousal or gratification.
Penetration is defined in the next section, (1), supra and requires some "intrusion.” Webster’s New Collegiate Dictionary defines kiss: (verb) "to touch with the lips . . . ”; (noun) "a caress with the lips.” It is an exercise in casuistry to equate contact with penetration or intrusion . Moral outrage makes high sounding but inappropriate justification. Courts are diffident in grappling with these concepts, and understandably so. In People v Hicks, 98 Mich 86, 90; 56 NW 1102 (1893), the Court commented on an indecent liberties statute:
In this case as in State v Millard, 18 Vt [574] 577 [1846], it may be said that "no particular definition is given by the statute of what constitutes this crime. The indelicacy of the subject forbids it, and does not require of the court to state what particular conduct will constitute the offense. The common sense of the community, as well as the sense of decency, propriety, and morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.” The prosecution in that case was for indecent exposure of the person.
In order to deny defendant’s motion to quash the trial court had to determine that a kiss of the penis amounts to fellatio in violation of MCL 750.520d(l)(a); MSA 28.788(4)(l)(a). To do so blurs the distinction between contact and penetration. There is no testimony here or evidence to support any penetration, however slight, and I think therefore the defendant was wrongly charged. To the extent that People v Camon, 110 Mich App 474; 313 NW2d 322 (1981), lv den 414 Mich 859 (1982), *649and People v Sommerville1 100 Mich App 470; 299 NW2d 387 (1980), lv den 417 Mich 1022 (1983), are read to define fellatio as including any oral contact with the male genitals, I think they are wrongly decided. It is akin to defining intercourse as contact between male and female genitals. A charge of gross indecency would have been supported by the evidence here, MCL 750.338b; MSA 28.570(2).2 The motion to quash should have been granted.
I would reverse.
The analysis made here does not apply to cunnilingus. I think the Sommerville Court correctly determined that the oral contact for cunnilingus is sufficient because by definition, penetration is not required. Contrary to that Court’s dicta "The same is true of fellatio . . . ,” 110 Mich App 480, the same is not true of fellatio.
People v Dexter, 6 Mich App 247; 148 NW2d 915 (1967), and People v Howell, 396 Mich 16; 238 NW2d 148 (1976). Neither side has briefed the feasibility of attempt charges.