(dissenting in part). I respectfully dissent from that part of the majority opinion which holds that Sauceda's convictions for both first- and second-degree sexual assault involving the victim K.J. violated Sauceda's state and federal constitutional protections against double jeopardy.
My disagreement lies on a number of grounds. First, I disagree with the majority's conclusion that the state's multiple charging of Sauceda violates the double jeopardy "identity in fact/identity in law" prong of multiplicity methodology. Second, I disagree with the majority's conclusion that Sauceda's double jeopardy argument requires an excursion into the "allowable unit of prosecution" prong of multiplicity methodology because Sauceda does not raise this claim. Third, even if this excursion were necessary, I disagree that the state's multiple charging violates the legislature's "allowable unit of prosecution."
I. DOUBLE JEOPARDY METHODOLOGY
The United States Supreme Court has identified three interests protected by the double jeopardy clause: it protects against a second prosecution for the same offense after acquittal; it protects against a second prose*592cution for the same offense after conviction; and it protects against multiple punishments for the same offense. State v. Bohacheff, 114 Wis. 2d 402, 407, 338 N.W.2d 466, 468-69 (1983). Only the latter consideration is present in this case.
Both Sauceda and the majority labor under the mistaken belief that double jeopardy protects against multiple punishments for the same act. However, the law speaks of the "same offense," not the "same act." The "identity in fact/law" analysis addresses this double jeopardy concern, answering whether multiple charges nonetheless constitute but one offense. Applying this analysis, I conclude that the state's multiple charges against Sauceda properly address different offenses.
The majority correctly begins its analysis with State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980), where the Wisconsin Supreme Court, after reviewing prior double jeopardy/multiplicity case law, set out the methodology for addressing a multiplicity claim.
In Rabe, the state charged four counts of homicide by intoxicated use of a motor vehicle arising from Rabe's single act of alleged intoxicated driving. The trial court ruled that this mode of charging was multiplicitous. Id. at 61, 291 N.W.2d at 815. The supreme court described multiplicity as the charging of a single offense in separate counts. Id. at 61, 291 N.W.2d at 815. The court repeated a two-pronged approach for analyzing a multiplicity claim:
First, in regard to the question of double jeopardy, the courts have determined whether the severed offenses are "identical in the law and in fact."
*593The second component of the test for multiplicity focuses on the legislative intent as to the allowable unit of prosecution under the statute in question.
Id. at 63, 291 N.W.2d at 816 (emphasis added; citation omitted).
The supreme court first rejected Rabe's double jeopardy claim under the "identity in fact/law" prong. The court then turned to the "allowable unit of prosecution" prong with this language:
Charging multiple counts, although not violative of double jeopardy, may nevertheless be multiplicitous as contrary to public policy if the legislative intent . . . indicates that the allowable unit of prosecution shall be but one count.
Id. at 69, 291 N.W.2d at 819 (emphasis added).
This language is clear and direct: the first prong addresses the double jeopardy aspect of a multiplicity claim; the second prong addresses the legislative intent aspect of a multiplicity claim by identifying the allowable unit of prosecution.
The majority correctly sets out Sauceda's claim: " [Wjhether the convictions for both first-degree and second-degree sexual assault regarding victim K. J. is 'multiple punishment' in violation of state and federal constitutional prohibitions against double jeopardy." Majority op. at 561 (emphasis added). As noted above, this is one of the three concerns protected by the double jeopardy clause. Bohacheff, 114 Wis. 2d at 407, 338 N.W.2d at 468-69. Since Sauceda raises only the constitutional claim that the state's multiple charging improperly subjects him to multiple punishment, the appropriate inquiry in this case under Rabe is whether the separate charges pass muster under the "identity in fact/identity *594in law" test — the constitutional component of a multiplicity issue.
The majority, however, also chooses to conduct an "allowable unit of prosecution" analysis — the nonconsti-tutional (or statutory) component of a multiplicity issue. Sauceda's framing of his issue, however, places no such question before us. While a multiplicity claim might carry both constitutional and nonconstitutional dimensions, this is not inherently so. A prosecution may well pass constitutional muster but yet violate legislative proscription. The majority fails to grasp this distinction.
In cases subsequent to Rate, the supreme court has continued to speak with equal clarity and directness on this subject. In State v. Mosley, 102 Wis. 2d 636, 307 N.W.2d 200 (1981), the appellant claimed that the state's charging of two counts of armed robbery was "multiplicitous." Id. at 641, 307 N.W.2d at 204. The court stated:
As we stated recently in State v. Rabe, the question has two aspects. The first concerns double jeopardy, as charging two counts for one offense would imper-missibly subject a defendant to multiple punishments for the same offense. The second inquiry concerns legislative intent as to the allowable unit of prosecution under the statute. We consider these inquiries in that order.
Id. at 643, 307 N.W.2d at 206 (emphasis added; citations omitted). After answering the first prong of Mosley's multiplicity issue, the court stated:
The second inquiry is whether, even though the multiple counts not be violative of double jeopardy, they comport with the legislative intent as to the allowable unit of prosecution ....
Id. at 644, 307 N.W.2d at 206 (emphasis added).
*595The supreme court echoed this same theme in State v. Tappa, 127 Wis. 2d 155, 378 N.W.2d 883 (1985):
In Rabe, this court described a two-element test utilized by Wisconsin courts in evaluating whether a charge is multiplicitous. The first element inquires whether the severed offenses are "identical in law and fact," and the second element inquires into "the legislative intent as to the allowable unit of prosecution under the statute in question." The first element concerns the issue of double jeopardy.
Id. at 162, 378 N.W.2d at 886 (emphasis added; citation omitted). Concluding that the multiple charging of Tappa survived this first-prong analysis, the supreme court further stated:
Even though the charging of multiple counts is not violative of double jeopardy, it may still be multiplic-itous if the legislative intent shows that the allowable unit of prosecution is one count. Applying the legislative intent test, we conclude that it was within the discretion of the state to charge the Defendant with three separate counts of theft.
Id. at 164, 378 N.W.2d at 887.
The court of appeals has followed this methodology. Of particular note is State v. Hirsch, 140 Wis. 2d 468, 410 N.W.2d 638 (Ct. App. 1987), where the court signaled its recognition that a multiplicity challenge can carry both constitutional and nonconstitutional dimensions. In Hirsch, the trial court dismissed multiple sexual assault charges on double jeopardy/multiplicity grounds. Id. at 470, 410 N.W.2d at 639. The state appealed, arguing that the multiple charging was constitutionally sound. Id.
After setting out the Rabe test, the court of appeals concluded that the multiple charges against Hirsch sur*596vived the "identity in law/identity in fact" test. The court then observed, "Because we conclude that the counts charged are substantially alike in fact, we do not address the legislature's intent concerning sec. 940.225(l)(d)." Id. at 475, 410 N.W.2d at 641 (emphasis added).1
I set out this history, perhaps at unnecessary length, to stress that this supreme court methodology is clearly stated, oft repeated and regularly followed.
II. APPLICATION OF THE METHODOLOGY A. The Statutes
I now turn to the application of this methodology to this case.2 Regarding K.J., Sauceda was charged with first-degree sexual assault, contrary to sec. 940.225(l)(d), Stats. (1985-86), and second-degree sexual assault contrary to sec. 940.225(2)(d). Section 940.225(l)(d) provided in relevant part that:
*597(1) . . .. Whoever does any of the following is guilty of a Class B felony:
(d) Has sexual contact or sexual intercourse with a person 12 years of age or younger.
Section 940.225(2)(d) states that:
(2) . . .. Whoever does any of the following is guilty of a Class C felony:
(d) Has sexual contact or sexual intercourse with a person who the defendant knows is unconscious.
B. Double Jeopardy 1. Identity in Fact
The majority reasons that K.J.'s age and unconsciousness simply represent alternative legislative recognitions of the same legal infirmity — K.J.'s inability to give consent. The majority gives far too cavalier a treatment to these two legal conditions, overlooking the prominence which the law accords them. In order to obtain a conviction under sec. 940.225(l)(d), Stats. (1985-86), the state must prove beyond a reasonable doubt that the victim was twelve years of age or younger. See Wis J I — Criminal 1206 and Wis J I — Criminal 1207.3 In order to obtain a conviction under sec. 940.225(2) (d), the state must prove beyond a reasonable doubt that the victim was unconscious. See Wis J I — Criminal 1214. Yet, the majority dismisses these fundamental differences as "insignificantly different” and *598"too minor to overcome the constitutional proscription against double jeopardy." Majority op. at 580 (emphasis in original). However, these matters concern different and essential elements of different crimes. I fail to understand how such an elementary principle of criminal law is relegated to such lowly status.
The majority also states that the "identity in fact" inquiry "focuses exclusively on the actor's conduct." Majority op. at 577. Understandably, no authority for this proposition is, or can be, offered. Here again, the majority is driven by its threshold error: its belief that the double jeopardy clause protects against multiple punishment for the same "act" rather than for the same "offense." Following this incorrect premise, the majority logically, albeit erroneously, concludes that the offenses are congruent.
However, no case holds that an "identity in fact” inquiry is limited to the actor's conduct only. Rather, the law requires that we determine "whether each count requires proof of an additional fact which the other count or counts do not." Hirsch, 140 Wis. 2d at 473, 410 N.W.2d at 640. "The allegation of substitute facts, all of which furnish the same legal element of the crime, does not result in multiplicitous charges if these facts are either separated in time or are of a significantly different nature in fact." Id. This language does not state or suggest that an analysis of the evidence is to be limited to the actor's conduct alone.
Here, K.J.'s age and unconscious status are "of a significantly different nature in fact." Id. They represent different essential facts of different crimes. Proof of one does not even remotely begin to prove the other. The two offenses concerning K.J. are not identical in fact.
*5992. Identity in Law
Next I consider whether the offenses are identical in law. The case law reveals that this inquiry focuses on the statutes under which the multiple offenses are charged. In cases where multiple offenses are charged under the same statute, identity in law exists. See State v. Van Meter, 72 Wis. 2d 754, 758, 242 N.W.2d 206, 208 (1976); see also Tappa, 127 Wis. 2d at 162-63, 378 N.W.2d at 886, and State v. Eisch, 96 Wis. 2d 25, 31, 291 N.W.2d 800, 803 (1980).
Such is not the case here. The state prosecuted Sauceda under different statutes with some common elements and some markedly different elements. Most importantly, each statute creates and addresses a different class of victim — those under twelve years of age, sec. 940.225(l)(d), Stats. (1985-86), and those who are unconscious, sec. 940.225(2)(d). "A single act may be an offense against two statutes, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." Austin v. State, 86 Wis. 2d 213, 224, 271 N.W.2d 668, 672 (1978) (quoting State v. Martin, 229 Wis. 644, 652, 282 N.W. 107, 110 (1939)), overruled on other grounds, State v. Poellinger, 153 Wis. 2d 493, 504 n.5, 451 N.W.2d 752, 757 (1990). Sauceda's offenses are not identical in law.
The majority acknowledges that the statutes at issue here are different. Majority op. at 588. But again the majority, echoing its "identity in fact" rationale, concludes that these differences are superficial and that youth and unconsciousness are simply alternative conditions establishing the same legal infirmity: to wit, lack of consent. In so doing, the majority oversteps the bounds *600of prior "identity in law" methodology, fashions its own methodology and, as a result, reaches the wrong conclusion.
The "identity in fact/law" analysis answers whether the multiple charges against Sauceda are the same offense and violative of double jeopardy. After application of this analysis, I conclude that the charges against Sauceda are not identical in fact and law. This answers Sauceda's double jeopardy challenge. No further inquiry is necessary.
III. ALLOWABLE UNIT OF PROSECUTION
The majority, however, believes that a double jeopardy claim based on multiple charging also requires an analysis of the legislative intent as to the allowable unit of prosecution. As the preceding discussion demonstrates, this is not so. Regardless, I disagree with the majority's conclusion that Sauceda's multiple prosecution violated the legislature's allowable unit of prosecution.
The majority correctly notes that in considering this question we must look to the statutory language, the legislative history, the nature of the proscribed conduct, and the appropriateness of multiple punishment. Manson v. State, 101 Wis. 2d 413, 422, 304 N.W.2d 729, 734 (1981).
While the majority presents a thorough and complete legislative history regarding the two statutes at issue, there is nothing in this recital which assists in resolving the "allowable unit of prosecution" issue in this case. However, in the course of this discussion, the majority makes the startling observation that ”[t]he legislative history supports our conclusion that in creating separate groups of victims who could not give meaning*601ful and informed consent, the legislature was not creating separate crimes." Majority op. at 584. This is clearly wrong. The legislature did create separate crimes by creating separate groups of victims. Section 940.225(l)(d), Stats. (1985-86), was a separate crime, proscribing sexual intercourse or contact with a person twelve years of age or younger. Likewise, sec. 940.225(2)(d) is a separate crime, proscribing sexual intercourse or contact with a person known to be unconscious.
Next I address the statutory language and the nature of the proscribed conduct. The majority observes that the sexual assault law, sec. 940.225, Stats. (1985-86), is aimed at a "single protection — the freedom from sexual assault." Majority op. at 582. While true, the majority fails to grasp that the legislature accords this protection in an elevated fashion to certain especially vulnerable persons — among them children and the unconscious. The legislature proscribes sexual intercourse and sexual contact with a person who possesses these disabilities. K.J. was vulnerable both as a child and as an unconscious person when Sauceda assaulted her. Sauceda's actions invaded K.J.'s protections on both fronts. Based on the statutory language and the nature of the proscribed conduct, I conclude that the state properly charged Sauceda with both counts.
On the question of the appropriateness of multiple punishments, we are to consider whether there is a single act, transaction, incident, or course of conduct; whether the two grounds are significantly different so that they may be viewed as deserving separate punishment; and whether the two grounds invade a different interest of the victim or public which the statute intends to protect. Bohacheff, 114 Wis. 2d at 416, 338 N.W.2d at 473.
I conclude that only the first consideration — whether there is a single act, transaction, incident, *602or course of conduct — supports Sauceda's position. However, as to the remaining factors, I have already detailed that the legislature has created separate, discrete and different grounds of criminal conduct when a victim presents certain disabilities. Sauceda's criminal conduct offended two of these legislative grounds when he sexually assaulted K.J., an unconscious child. His conduct also invaded K.J.'s separately protected interests — as a child and as an unconscious person — to be free from sexual assault. Where statutes intend to protect multiple and varied interests of the victim and the public, multiple punishments are appropriate. See State v. Wolske, 143 Wis. 2d 175, 184, 420 N.W.2d 60, 63 (Ct. App. 1988).
Except for unknown conditions, defendants take their victims as they find them. State v. Noren, 125 Wis. 2d 204, 210, 371 N.W.2d 381, 385 (Ct. App. 1985). This also applies where the victim presents special attributes known to the offender. Id. Those attributes in this case were K.J.'s youth and her unconscious state. The record well demonstrates that Sauceda knew K.J. was a child and was asleep4 when he assaulted her and that he chose her as a victim because of these very infirmities.
I conclude the state's multiple charging of Sauceda was within the allowable unit of prosecution as contemplated by the legislature.
IV. CONCLUSION
Double jeopardy issues resulting from multiple charging present "one of the most elusive essentials of the criminal law" and "prosper in confusion." Harrell v. State, 88 Wis. 2d 546, 570, 277 N.W.2d 462, 472 (Ct. *603App. 1979). The guarantee against double jeopardy is " 'one of the least understood . . . provisions of the Bill of Rights' and the holdings of the United States Supreme Court can 'hardly be characterized as models of consistency and clarity.' " Bohacheff, 114 Wis. 2d at 406, 338 N.W.2d at 468 (quoting Whalen v. United States, 445 U.S. 684, 699-700 (1980) (Rehnquist, J. dissenting)).
In light of this inherent complexity, it is unfortunate that the majority opinion creates new and unnecessary confusion in one area of the field where our supreme court has clearly spoken: the methodology which the courts are to employ when multiple charging is alleged to violate double jeopardy protections.
The majority opinion offends on two fronts: (1) it ignores established supreme court precedent on this question; and (2) it substitutes judicial judgment in an area where the legislature has made its intentions known. For these reasons, I cannot join in the majority opinion.
Sauceda's convictions on the K.J. offenses do not violate double jeopardy protections. I would affirm the judgments of conviction and the order denying Sauceda's request for postconviction relief.
As the majority notes, both Sauceda and the state frame their "identity in fact/law" arguments in terms of the so-called "elements only" test wherein the elements of each statute are compared to determine congruity or lack thereof. See State v. Nelson, 146 Wis. 2d 442, 448, 432 N.W.2d 115, 118 (Ct. App. 1988) (citing State v. Carrington, 134 Wis. 2d 260, 264, 397 N.W.2d 484, 486 (1986)). I agree with the majority that this application is limited to lesser included offense cases. Majority op. at 574.
Wis JI — Criminal 1206 and 1207 were withdrawn in 1989 in light of the legislature's repeal of sec. 940.225(l)(d), Stats. (1985-86), and recreation of the equivalent offense in sec. 948.02(1), Stats. See Wis J I — Criminal 2102 and 2103.
In fact, the state proved beyond a reasonable doubt that Sauceda knew K.J. was unconscious because such knowledge is an element of the offense. Section 940.225(2)(d), Stats.