(dissenting).
I respectfully dissent.
Defendant, Kris Pearson, has been convicted of three crimes of second-degree, sexual abuse and has been sentenced to serve twenty-five years for each crime, concurrently. He has not appealed these convictions or sentences. The only question before this court is whether defendant was legally convicted of second-degree sexual abuse for another act as charged by the State to constitute a separate crime. I believe this conviction is in error as a matter of law.
I agree with the facts as stated by the majority but disagree with the result because it is reached by a flawed analysis. That analysis focuses on whether defendant committed an act of sex, which no one disputes, and therefore violated section 709.3(2), sexual abuse in the second degree. The focus should be on the meaning of “contact” as used in the statute.
Section 709.3(2) defines sexual abuse in the second degree as sexual abuse committed against a person under the age of twelve. Section 709.1 defines sexual abuse as a “sex act” between persons committed under circumstances described in three subpara-graphs. “Sex act” is defined in section 702.17 as follows:
The term “sex act” or “sexual activity” means any sexual contact between two or more persons by: penetration of the penis into the vagina or anus; contact between the mouth and genitalia or by contact between the genitalia of one person and the genitalia or anus of another person; contact between the finger or hand of one person and the genitalia or anus of another person, except in the course of examination or treatment by a person licensed pursuant to chapter 148, 148C, 150, 150A, 151, or 152; or by use of artificial sexual organs or substitutes therefor in contact with the genitalia or anus.
In the definition the legislature has used the word “contact” five times in specifying what acts are prohibited. The “sexual contact” that is thus prohibited is specifically described separately as follows:
1. Penetration of the penis into the vagina or anus.
2. Contact between the mouth and genitalia or by contact between the genitalia of one person and the genitalia or anus of another person.
3. Contact between the finger or hand of one person and the genitalia or anus of another person, except in the course of examination or treatment by a licensed person.
4. Use of artificial sexual organs or substitutes therefor in contact with the genitalia or anus.
The majority never defines the word “contact” but instead undertakes to interpret the statute in terms of distinguishing acts that are sexual and those that are not. In so doing, statutory interpretation is lost in a deluge of opprobrium.
The word “contact” is defined as: la: union or junction of body surfaces: a touching *458or meeting: ([i.e.] cooled by contact with the air; sexual contact. Webster’s Third New International Dictionary 490 (1986).
The word is defined in Webster’s New World Dictionary, Second College Edition 306 (1986) as: 1. the act or state of touching or meeting ([i.e.] two surfaces in contact).
The word “touch” is defined as:
la: to bring a bodily part briefly into contact with so as to feel ([i.e.] touching the delicate petals with gentle fingers);
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b. to perceive or experience through the tactile sense;
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5c: to have sexual intercourse with — used chiefly with real or implied negative ([i.e.] doubt if he had ever touched a woman before his marriage.)
Webster’s Third New International Dictionary at 2415.
The very nature of contact and touch belies the interpretation created by the majority that in a sexual context it can occur through layers of clothing. The contact experienced by the hockey player when surrounded by protective padding or by the fencer touched by the foil on his mask is not the type of harmful contact sought to be reached and criminalized by the words “sex act” as defined by section 702.17. A reading of the statutory description of the four types of contact that constitute a “sex act” displays the intimate personal nature of the offense. The criminal act first described as a sex act involves penetration. The contact described in the following three specified sex acts is also of an intimate, personal nature.
I believe that, applying the usually understood meaning of “contact” and as defined by Webster’s Dictionary, the statutory contact required involves the touching of the victim’s skin by the defendant in the commission of the offense. This meaning conforms to the measure of gravity indicated by the legislature in classifying these acts as second-degree sexual abuse and is consistent with the inclusion of the offense of penetration specified as the first example. See Iowa Code §§ 709.3, 702.17. A barrier of clothing is not mentioned in the statute as the equivalency of “contact,” nor do I believe this to be a legislative oversight. Id. Since this type of contact did not occur in the instant case, the offense was not committed as a matter of law.
I do not believe the statute is ambiguous on this issue. However, if the meaning of “contact” is thought to be ambiguous, our jurisprudence is clear on the deciding principles.
The principle that “in construction of a penal statute, all reasonable doubt concerning its meaning must operate in favor of the defendant,” has been repeated in thousands of judicial opinions in the Anglo-American legal world during the last two-and-one-half centuries. Application of the strict interpretation rule bears directly on the proper working of the nulla poena principle (no punishment without pre-existing law). See generally Francis A. Allen, The Erosion of Legality in American Criminal Justice: Some Latter-Day Adventures of the Nulla Poena Principle, 29 Arizona Law Review 385 (1987).
Iowa law has embraced this principle in numerous cases. In State v. Koplin, a case involving false use of a financial instrument, we said:
We are confronted here with the construction of a criminal statute. As with all statutes, when a criminal statute is plain and its meaning clear, we look no farther than the express terms of the statute. However, when ambiguities exist, criminal statutes are construed strictly with doubts resolved in favor of the defendant. This rule insures citizens will have fair warning of what actions are proscribed and can govern themselves accordingly. As a result, when charges plainly fall outside the fair scope and intent of a statute’s terms, the statute will not be construed to encompass these charges even if the charges appear to fall within the reasons and policies underlying the statute.
State v. Koplin, 402 N.W.2d 423, 425 (Iowa 1987) (citing State v. Rich, 305 N.W.2d 739, 745 (Iowa 1981); State v. Soppe, 374 N.W.2d 649, 652 (Iowa 1985); State v. Welton, 300 N.W.2d 157, 160 (Iowa 1981)).
*459In State v. Bown, 475 N.W.2d 3, 6 (Iowa 1991), a ease involving the operation of a motor vehicle while intoxicated, we recognized the same principle. We applied the principle in deciding that a defendant had not desecrated the flag in State v. Kool, 212 N.W.2d 518, 520 (Iowa 1973). We said:
We construe statutory words according to the approved usage of the language. But “[statutes defining crimes are to be strictly construed and not to be held to include charges plainly without the fair scope and intendment of the language of the statute, though within its reason and policy, and in the event of doubts they are to be resolved in favor of the accused.”
Id., 212 N.W.2d at 520 (citing Iowa Code § 4.1(2) (1973)) (quoting State v. Nelson, 178 N.W.2d 434, 437 (Iowa 1970)).
State v. Rich, 305 N.W.2d 739 (Iowa 1981) involved a kidnapping statute. We said:
It is well established that penal statutes must give fair warning of the conduct prohibited, and are to be construed strictly, with doubts being resolved in favor of the accused. When a statute is plain and its meaning is clear, however, courts are not permitted to search for meaning beyond its express terms.
Id. at 745 (citing State v. Price, 237 N.W.2d 813, 815 (Iowa 1976); State v. Lawr, 263 N.W.2d 747, 750 (Iowa 1978)).
In deciding constitutional issues we have referenced corollary principles. In Price, we said:
Statutory language offends due process under the Fourteenth Amendment on the ground of vagueness if it does not inform a person of ordinary intelligence what conduct it forbids. A penal statute must give a person of ordinary intelligence fair warning of what is prohibited, and, in order to avoid arbitrary and discriminatory enforcement, it must provide an explicit standard to law enforcement personnel.
Price, 237 N.W.2d at 815.
In State v. Baldwin, 291 N.W.2d 337 (Iowa 1980), we held that the definition of “sex act” under the Iowa criminal code did not criminalize the touching of a woman’s breast. Id. at 340. Defendant’s conviction of committing lascivious acts with a child was reversed. Id. The statutory definition of “sex act” then contained almost exactly the same wording as in section 702.17 now. Id. at 339. We said:
Significantly, the human breast has no part in the foregoing statutory definition of a sex act. The term “genitalia” pertains only to the reproductive organs.
Id. at 340. (Citing Dothar’s Medical Dictionary (25th ed. 1975))
In State v. Rodgers, the Hawaii Supreme Court held that sexual abuse in the first degree was not committed by the defendant’s touching the clothed breasts of a thirteen-year-old female. State v. Rodgers, 68 Haw. 438, 718 P.2d 275, 278 (1986). The statute prohibited the “touching of the sexual or other intimate parts of a thirteen-year-old with the intent of gratifying ... sexual desire.” Id. at 276. The court said:
Clearly, there is “touching” within the meaning of the statute if the sexual or other intimate part itself were rubbed. The touching here, however, was through the victim’s clothes. Granted, the relevant language can readily be construed to include such conduct within its proscriptions. But it is subject also, as the defendant maintains, to a reading that contact with a person’s clothed breasts does not constitute “sexual contact.”
Id. at 277.
Comparing the statute to other statutes and noting that the legislature could have proscribed the touching of clothed sexual parts of a person, the court held that the statute did not embrace the offense charged. Id. at 278. Regarding the issue of “clothed contact” the court said:
It is virtually self-evident that the drafters of the Penal Code could easily have spoken in clearer and more definite terms. The definition of “sexual conduct” gives evidence of the ease with which the task could have been accomplished, and we need not venture far for further proof if such were required.
Our legislature had also demonstrated its awareness of this issue by specifically referring to the touching of clothing in the crime *460of indecent contact with a child, section 709.-12.
The majority’s reliance on the South Dakota ease of State v. Schnaidt, 410 N.W.2d 539 (S.D.1987) is misguided. The South Dakota statute interpreted in that case defines “sexual contact” as “touching, not amounting to rape....” Id. at 540 (citing S.D.Codified Laws. Ann. § 22-22-7.1 (1981)). Moreover, the rule of the common law that penal statutes are to be strictly construed was abrogated by the South Dakota legislature. S.D.Codified Laws Ann. § 22-1-1.
The majority has founded its analysis largely out of a fear that a defendant could escape the meaning of the statute by using a condom or glove in committing the crime of sexual abuse. This legitimate concern, however, does not support the majority’s response because our own case law already solves that problem.
In State v. Whetstine, 315 N.W.2d 758, 763 (Iowa 1982) we held that a finger used in perpetrating a sexual abuse came within the definition of “sex act” under section 702.17. The statutory definition now specifically includes use of a finger. Iowa Code § 702.17. It also includes use of an artificial sexual organ or substitute. Id.
Citing Whetstine, our court of appeals held that use of a hand by the defendant in committing the sex crime was included in the definition of “sex act” under section 702.17. State v. Mueller, 344 N.W.2d 262, 267 (Iowa App.1983). The statutory definition now also specifies use of a hand in committing a sex act. These interpretations and the present wording of section 702.17 clearly indicate that the term “sex act” would embrace a defendant’s use of a condom or glove because that would constitute use of artificial sexual organs or substitutes. See id.
In fashioning its remedy of fairness for applying the definition of “sex act” to future factual situations, the majority has left judging in favor of legislating. A sex crime will now be determined by what third parties perceive as a touching regardless of the amount of intervening clothing or the perception of the victim. The “viewed objectively” standard would be for the purpose of determining whether the defendant’s act was sexual in nature. At the same time a lack of sexual motivation would not necessarily bar a finding of “sexual in nature.” The majority provides a list, formulated as a guide in determining whether a sexual nature was the gravamen of what occurred. Nothing in the definition of “sex act” in section 702.17 in any way suggests that the legislature intended an outreach of this sort.
By adopting a “case-by-case” basis to determine how much intervening material is necessary before sexual contact is no longer possible, the majority has fogged the distinction between law and fact. The majority pays lip service to the principle of strict statutory construction, yet abjures its application. Instead, common sense is relied on to determine both the meaning of the law and its application. But common sense, an amorphous term itself, is no substitute for a clear statement of what the law prohibits so that juries can apply it to a defendant’s act. It is the responsibility of the judges to clearly state what the law is and thereby what acts are a crime. The jury, as fact finder, then determines whether the defendant did those acts declared unlawful. By mixing the two, as is now approved, juries will be rudderless vessels navigating an uncharted course without compass or lighthouse. Law will oscillate from jury to jury on waves of emotion.
There is a symmetry in law that is important to maintain. It is no less so in interpreting the criminal law. Each part should be preserved for its intended purpose and for its proper application. The majority interpretation does not square with these goals.
By construing “sexual contact” in the broadest sense, no meaningful distinction is left of the legislature’s specification of “penetration of the penis into the vagina or anus” as a sex act. The sexual act of contact with the victim or the victim’s clothing would render purposeless the specification of penetration. The former act would always supplant the latter.
It is also unnecessary and unwise to cast such a large net in interpreting section 702.-17. Other statutes have obvious application to the act committed by this defendant. Sec*461tion 709.8 criminalizes lascivious acts with a child. Indecent contact with a child, criminalized by section 709.12 includes touching the clothing covering the immediate area of the inner thigh, groin, buttock, anus, or breast of the child.
I would reverse this conviction as a matter of law for the reasons stated.