concurring in the result:
I have strong reservations about whether the D.C. Council, in enacting the ASAA to “strengthen and reform the existing laws against rape and sexual abuse in the District of Columbia,”1 intended the government to be able to charge the new offense of misdemeanor sexual abuse, D.C.Code § 22-3006, in the case of a child victim. As part of the ASAA, the Council established a hierarchy of crimes expressly dealing with sexual abuse of children. See §§ 22-3008 to 22-3010. It included no misdemeanor offense within that hierarchy. Also, as to those crimes, it declared the defenses of mistake of age and consent largely inapplicable. See § 22-3011(a). Nevertheless, in this case as in others, see Mungo v. United States, 772 A.2d 240, 244-45 (D.C.2001), the government has reached outside that hierarchy to charge child sexual abuse — here, specifically, an unlawful “sexual contact” — under a misdemeanor statute, § 22-3006, that does two pertinent things. First, as an element of the offense, it requires the government to prove that the complainant did not give “permission” for the sexual act or contact at issue. See Mungo, 772 A.2d at 244-45. Second, it incorporates the same defense of consent that the Council mostly barred in the case of child sexual abuse. See *1108§ 22-3007. The court deals with this seeming contradiction — a charge of child abuse under a statute permitting a defense of permission or consent the Council meant largely to bar in the case of child victims — by what amounts to a revision of § 22-3006, as well as the other general sexual assault provisions of the ASAA. See §§ 22-3002 to 22-3005. Despite the plain language of § 22-3007, it holds that “if the complainant in a misdemeanor sexual abuse (or other general sexual assault) prosecution was a child at the time of the alleged offense, an adult defendant who is at least four years older than the complainant may not assert a ‘consent’ defense.” Ante at [1106]. (The four-year differential, not mentioned in either § 22-3006 or § 22-3007, is borrowed from the child sexual abuse provisions.) This is a questionable exercise of statutory interpretation, for in general a court should no more read out of a statute, even for a subclass of cases (here child sexual abuse prosecutions), a defense the statute plainly makes available than it should “read into an unambiguous statute language that is clearly not there.” Carter v. State Farm Mut. Auto. Ins. Co., 808 A.2d 466, 472 (D.C.2002).
It would not be a response, it seems to me, to say that by “consent” in § 22-3007 the Council meant “legally valid” consent, something a child by law cannot give. When the Council in the ASAA meant to invalidate consent as a matter of law, it knew exactly how to do so, as in § 22-3011; see also § 22-3017 (“[c]onsent is not a defense tó a prosecution for” sexual abuse of a ward, a patient, or a client). The natural conclusion, I believe, is that the consent or permission referred to in §§ 22-3006 and 22-3007 is “valid” in all its applications, to be established as a matter of fact (or at least reasonable doubt) in any case where raised as a defense. Yet, since the Council plainly meant to bar that defense in most child sexual abuse prosecutions, I strongly doubt that it intended such prosecutions to come within the reach of § 22-3006. As the court recognizes, appellant could have been charged with second degree child sexual abuse, § 22-3009, as to which no issue of consent — and thus no need to revise the statutory language — would have arisen.
Davis, however, has not argued in this court, nor did he argue below, that he was charged under the wrong statute. I see no duty of the court to raise the issue for him at this late date, and because I agree that consent was unavailable to him as a defense in this child sexual abuse prosecution, I join the court in affirming.
. Council of the District of Columbia, Report of the Committee on the Judiciary, Bill 10-87, The "Anti-Sexual Abuse Act of 1994,” at 1 ("Committee Report”).