(dissenting). I concur with the general rule posited by Justice Cavanagh, as I understand that rule to be: A sentence that departs from the recommended guidelines is not necessarily disproportionate if the judge’s reasons for departure consist of factors not already encompassed by the guidelines. The rule posited by Justice Cavanagh not only recognizes that the guidelines fail to account for the multitude of variables surrounding a particular offense and offender, but also provides a workable method by which trial courts and appellate courts can uphold proportionality in sentencing._
*334While I agree with the rule postulated by Justice Cavanagh, I do not concur in part m of his opinion, because most of the reasons for departure articulated by the trial judge do not consist of factors already encompassed by the guidelines. Thus, it is the extent of departure from the guidelines, as opposed to the mere departure, that constitutes an abuse of sentencing discretion in this case.
i
The sentencing judge specifically identified the reasons upon which he based his decision to depart from the sentence guidelines for first-degree criminal sexual conduct. Unlike the majority, I confine my review to those reasons that are specifically identified on the sentencing record and in the departure evaluation form. To speculate, as the majority does, that reasons other than those identified by the sentencing judge, motivated his decision to depart from the guidelines, defeats the purposes of requiring judges to specifically articulate their reasons for departure. See People v Fleming, 428 Mich 408; 410 NW2d 266 (1987).
Properly focusing on the reasons that the sentencing judge identified as the basis for his departure from the guidelines, I agree with Justice Cavanagh that the "psychological effect [of this crime] on the victim” and "exploitation of the victim” are factors already encompassed by the criminal sexual conduct sentencing guidelines and were insufficient reasons for departure.1 I also *335agree that the sentencing judge’s general dissatisfaction with the guidelines is not in itself a legitimate reason for departing from the guidelines. If those three reasons had been the only basis for the judge’s departure from the sentencing guidelines, then there would be no need for me to write separately. However, the sentencing judge identified other reasons that I believe are not encompassed by the guidelines and which merit further consideration.
The sentencing judge identified the defendant’s eleven prison misconducts as a reason for departure. Because prison misconduct is a relevant sentencing consideration, not encompassed by the guidelines, the judge did not abuse his discretion by considering it.
Similarly, the family relationship between the defendant and the victim was a relevant sentencing consideration not encompassed by the criminal sexual conduct guidelines. People v Milbourn, 435 Mich 630, 660-661; 461 NW2d 1 (1990). At least in the context of a first-degree criminal sexual conduct offense, it is not sufficient to say that because a factor, such as family relationship, was an element of the offense, it necessarily is encompassed by the guidelines. In contrast to other offenses, a conviction for first-degree criminal sexual conduct may be premised on eight distinct theories, all of which are punishable by imprisonment for life or any term of years, many of which would not require *336a family relationship. See MCL' 750.520b(l)(a)-(h); MSA 28.788(2)(l)(a)-(h). Because the relevant sentencing guidelines do not distinguish between first-degree criminal sexual conduct with a family member and other types of first-degree criminal sexual conduct, they oifer no guidance in resolving the question what sentence, within the statutorily prescribed range, is suitable to this offender who in perpetrating this offense sexually forced himself upon a young family member. In fact, the family relationship between the victim and the defendant would seem especially pertinent here, where that relationship facilitated the perpetration of the crime. Accordingly, consideration of the relationship between the defendant and the victim was not an abuse of sentencing discretion.
The sentencing judge also identified the defendant’s "low rehabilitative potential” as a reason for departure from the guidelines. While the record is less than clear about why this defendant is regarded as having low potential for rehabilitation, an individual’s potential for rehabilitation generally is a legitimate sentencing consideration, not already encompassed by the guidelines. People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972). Therefore, it was not an abuse of sentencing discretion to consider that factor.
The defendant’s apparent lack of remorse is also not a factor considered by the guidelines. However, under the facts of this case, I cannot conclude that remorse was a proper consideration. Following the defendant’s allocution in which he repeatedly asserted his innocence, the sentencing judge explained its finding of remorselessness as follows:
First of all, I’m extremely concerned by your lack of remorse. Now, certainly you are protesting your innocence, and you have every right to pro*337test your innocence and I will not hold that against you in any way. But I do see among — I see in you, sir, an absolute failure to accept responsibility for your behavior and absolute disregard for the concern about other people. I see now a desire only for yourself, an absolute disregard for that young woman that was hurt. I was very concerned about that, no remorse whatsoever in what you did.
While the sentencing judge paid lip service to the defendant’s right to assert innocence, it is obvious that the judge’s finding of remorselessness was based merely on the defendant’s assertion of innocence. Therefore I cannot conclude that remorselessness was a proper sentencing consideration in this case. In People v Yennior, 399 Mich 892 (1977), this Court held: "A court cannot base its sentence even in part on a defendant’s refusal to admit guilt.” A majority of this Court reaffirmed Yennior and explained that reliance on a defendant’s assertion of innocence is not a proper sentencing consideration if it appears that "had the defendant affirmatively admitted guilt, his sentence would not have been so severe.” People v Wesley, 428 Mich 708, 713, 725; 411 NW2d 159 (1987).2
On the basis of the record in this case, it appears that had the defendant admitted guilt, his sentence would not have been as severe because the perceived lack of remorse, on which this sen*338tence was partly based, would have been lacking. Therefore, in accord with the majority view expressed in Wesley, I would conclude that the sentencing judge was improperly influenced by the defendant’s persistent assertion of innocence.
In this case, any attempt to distinguish the defendant’s continued assertion of innocence from his lack of remorse would be an illusory effort designed to justify a sentence that would have been less severe if the defendant had affirmatively admitted his guilt. Nothing in Yennior or Wesley, supra, compels such sophistry.
ii
While the sentencing judge based his discretionary departure from the guidelines on some reasons not already encompassed by the guidelines, his other reasons consisted of factors already encompassed by the guidelines and were of sufficient importance and significance to lead me to conclude that the extent of departure from the guidelines in this case resulted in a disproportionate sentence. Accordingly, I would find the sentence to be invalid, and would remand for resentencing.
Levin, J., concurred with Brickley, C.J."Psychological injury to the victim” is encompassed by offense variable 13 and "offender exploitation of victim” is encompassed by offense variable 7. Michigan Sentencing Guidelines (2d ed).
In People v Milboum, 435 Mich 630, 660, n 27; 461 NW2d 1 (1990), we recognized that in extraordinary occasions, a factor already encompassed by the guidelines would, nevertheless, also be a factor justifying departure from the guidelines:
*335[T]here will be occasions when the conduct or the criminal record to be scored under the sentencing guidelines is extraordinary in its degree, and thus beyond the anticipated range of behavior treated in the guidelines.
This case simply is not one of those cases in which the effect on the victim and degree of exploitation are so extraordinary or egregious that even the highest score on the offense variable would be insufficient to reflect the conduct. For an example of such a case, see the facts of People v Merriweather, 447 Mich 799; 527 NW2d 460 (1994).
Justice Archer’s opinion, joined by Justice Griffin, identified three factors that would indicate that a sentence was likely to have been improperly influenced by the defendant’s persistence in his innocence: "(1) the defendant’s maintenance of innocence after conviction, (2) the judge’s attempt to get the defendant to admit guilt, and (3) the appearance that had the defendant affirmatively admitted guilt, his sentence would not have been so severe.” Id. at 713.
Justice Levin and I expressed our opinion that a sentencing judge could properly consider those factors "which exist apart from a defendant’s continued assertions of innocence.” Id. at 725.