(concurring specially).
I am unable to agree with the court’s analysis of the included offense issue although I reach the same result.
The determination of whether one offense is included in another does not depend on whether elements of the lesser offense are identical to or embraced in particular elements of the major offense. Instead, the determination depends on whether “the minor offense is necessarily an elementary part of the greater.” State v. Marshall, 206 Iowa 373, 375, 220 N.W. 106, 106 (1928) (emphasis supplied).
This distinction can be illustrated by examining the relationship between rape and assault with intent to commit rape as those offenses were defined prior to the criminal code revision. Rape was proscribed in § 698.1, The Code 1977, which provided in part: “If any person ravish and carnally know any female by force or against her will ... he shall be imprisoned . .” Rape required (1) carnal knowledge with the complainant (2) by force and against her will. See State v. Gray, 216 N.W.2d 306, 307 (Iowa 1974).* Assault with intent to commit rape required (1) assault (2) with intent to commit rape. See State v. Hoaglin, 207 Iowa 744, 748, 223 N.W. 548, 550 (1929).
It can be seen at once that the elements of the minor offense do not match elements of the major offense. Specific intent was not an element of rape. See State v. Booth, 169 N.W.2d 869, 874 (Iowa 1969). However, it was an element of the lesser offense of assault with intent to commit rape. See State v. Ramsdell, 242 Iowa 62, 66, 45 N.W.2d 503, 506 (1951). Nevertheless, as*11sault with intent to commit rape was included in rape because the lesser offense would necessarily be committed in the course of committing rape. The only difference between the completed offenses was that rape required carnal knowledge and the lesser offense did not. See State v. Banks, 213 N.W.2d 483, 485 (Iowa 1973).
In the present case, the issue is thus whether assault while participating in a felony is an elementary part of sexual abuse in the third degree. It is included if the major offense cannot be committed without committing the minor offense. Sexual abuse in the third degree, insofar as relevant here, requires (1) a sex act as defined in section 702.17, The Code, (2) between persons who are not at the time cohabiting as husband and wife (3) by force or against the will of the complainant. See 709.4(1). Assault while participating in a felony, insofar as relevant here, requires (1) an assault as defined in § 708.1(1) (2), while participating in a felony. See 708.3. As observed by the court, a person who is engaged in an act directed toward committing the felony of sexual abuse in the third degree is necessarily participating in a public offense as defined in section 702.13.
The only remaining question is whether sexual abuse in the third degree can be committed without an assault as defined in section 708.1(1). I am satisfied that sexual abuse in the third degree cannot be committed without an act “which is intended to result in physical contact which will be . offensive to another, coupled with the apparent ability to execute the act.”
Consequently the only difference between the completed offenses is that sexual abuse in the third degree requires proof the parties are not cohabiting as husband and wife and of a sex act. Therefore assault while participating in a felony meets the legal test as a lesser included offense of sexual abuse in the third degree.
Because a factual basis also existed for submission of the included offense, the trial court did not err in submitting it.
UHLENHOPP, J., joins this special concurrence.