(dissenting).
I respectfully dissent, because I would affirm the conviction. I agree with the court’s conclusion, stated in Part I of the majority opinion, that the clergy sexual misconduct statute is not unconstitutionally vague.1 But I disagree with the court’s conclusion and disposition, stated in Part III, that the statute is unconstitutional as applied in this case, warranting reversal of the conviction and remand for a new trial. Further, I disagree with the plurality conclusion stated in Part II.A that the statute is unconstitutional on its face. Although I agree with the conclusion stated in Part II.B that the statute is not unconstitutional on its face, I write separately to explain the reasons for my conclusion on that issue.
Facial Unconstitutionality
The clergy sexual misconduct statute does not entangle government in religion and therefore does not violate the Establishment Clause. The statute only contemplates application of neutral principles. None of the elements of the offense involve review of church doctrine. The statute is based on legislative judgments about the power imbalance inherent in the clergy-counseling relationship that negates true *97consent and does not incorporate church doctrine.
The First Amendment requires that civil courts abstain from resolving church disputes that would necessitate an adjudication of controversies over religious doctrine. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-09, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976) (stating that civil courts must defer to “the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity”); Presbyterian Church v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449-50, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969) (holding that civil courts could not determine whether the general church departed from its doctrine).
But civil courts are not required to abstain from resolving church disputes if it can be accomplished by application of “neutral principles of law” that “free civil courts completely from entanglement in questions of religious doctrine, polity and practice.” Jones v. Wolf, 443 U.S. 595, 602-04, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979) (noting that the neutral-principles-of-law method in a church property dispute relies “exclusively on objective, well-established concepts of trust and property law”). Civil courts may adopt a neutral-principles-of-law method for resolving church “ ‘disputes so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith.’ ” Id. (quoting Md. & Va. Eldership of the Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 368, 90 S.Ct. 499, 24 L.Ed.2d 582 (1970)).
We used a neutral-principles approach in Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426 (Minn.2002), a negligence action against a member of the clergy, alleging improprieties in marital counseling. The dispute in Odenthal centered on defining the appropriate standard of care. Defendant took the position that any standard of care necessitated assessments of religious components of the counseling relationship. Id. at 438. Plaintiff argued that several statutes, including one regulating defendant’s conduct as an unlicensed mental health practitioner, could be applied without regard to religion. Id. at 436-37. We concluded that an adjudication of the negligence claim by application of neutral standards set forth in the statute regulating conduct as an unlicensed mental health practitioner did not violate the First Amendment. Id. at 441.
The neutral-principles approach, as employed by the Supreme Court, does not require civil courts to refrain from review of all church-based facts. For example, in settling church property disputes, civil courts can examine church documents such as property deeds, local church charters, and general church constitutions. See Jones, 443 U.S. at 603, 99 S.Ct. 3020. What the neutral-principles approach does require is that any examination of religious documents by civil courts be done “in purely secular terms” and that civil courts not “rely on religious precepts” in resolving disputes. Id. at 604, 99 S.Ct. 3020.
The clergy sexual misconduct statute at issue here does not address church disputes and involves only application of neutral principles. The core elements of the offense are: (1) sexual penetration by the actor; (2) the actor is a member of the clergy or purports to be; (3) the actor is not married to the complainant; and (4)(a) the sexual penetration occurred during the course of a meeting in which the complainant sought or received religious or spiritual advice, aid, or comfort from the actor in private; or (b) the sexual penetration occurred during a period of time in which the *98complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private. Minn.Stat. § 609.344, subd. 1(1) (2006).2 None of these elements involve an examination of doctrinal matters, pastoral qualifications, or tenets of faith — only the nature of the meeting. The determination as to whether clergy advice is of a religious or spiritual nature is the same as that made for the evidentiary clergy privilege. See, e.g., State v. Rhodes, 627 N.W.2d 74, 85 (Minn.2001) (basing determination that communication was not privileged in part on finding that content of communication was not religious).
The plurality in Part II.A states that Minn.Stat. § 609.344, subd. 1(Z), in eliminating consent as a defense, burdens only the clergy. But the statute also eliminates the consent defense for sexual relationships between physicians, psychologists, nurses, chemical dependency counselors, social workers, marriage and family therapists, mental health services providers, or other persons who provide psychotherapy; other physicians; government and private correctional employees; special transportation employees; and their respective patients or clients. Id., subd. 1(h), (j), (k), (m), (n); Minn.Stat. § 609.341, subd. 17 (2006). The common ground in these relationships is the power imbalance between the parties. “Experts agree that sexual misconduct, as opposed to true consensual sex, occurs because there is a power differential.” Thomas P. Doyle & Stephen C. Rubino, Catholic Clergy Sexual Abuse Meets the Civil Law, 31 Fordham Urb. L.J. 549, 561 (2004).
The elergy-counselee relationship and secular counseling relationship reflect a similar power imbalance: “[p]eople seeking help, whether of a spiritual or secular nature, are likely to be vulnerable and dependent.” Janice D. Villiers, Clergy Malpractice Revisited: Liability for Sexual Misconduct in the Counseling Relationship, 74 Denv. U.L.Rev. 1, 43 (1996). This power imbalance is aggravated by: “the counselee’s initial vulnerability; the counselor’s control of the environment; the confidentiality of the relationship; [and] the leverage gained from unilateral self-revelation.” Id. at 46. The clergy sexual misconduct provision reflects legislative determinations about the disparity in power in the clergy-counselee relationship, during a period of ongoing counseling in private, that negates true consent.3
Certainly, not all clergy counselees and not all patients are vulnerable. Not all clergy and therapists are seen as all powerful. Nevertheless, “[t]he counselee typically pursues secular or religious counseling for marital difficulties, depression and suicidal tendencies, faith crises or uncertainty or coping skills in many facets of her life,” and is therefore easily subject to exploitation. Id. at 46.
*99This [power] differential is perhaps much more complex and certainly more powerful when it is between a trusted clergyman and a trusting congregant. Because of the role of the clergyman in the congregant’s life, there can be no true consent to a sexual relationship, even when the victim is age appropriate.
Doyle & Rubino, supra at 561-62.
The underlying facts in this case illustrate the exploitation of this power imbalance. One of the complainants sought spiritual help related to family and faith issues. Her husband’s employment as a sales representative entailed out-of-town travel. The other complainant sought help for severe depression following the illness and death of her mother. During their meetings, because Bussmann was their priest, they placed their trust in him and disclosed confidential information. When Bussmann first came to the church, he made a list of 20 women, 14 of whom he said later “hit” on him; and out of the 14, 12 were married. At the time of Buss-mann’s sexual relations with the complainants, he was having sexual relations with at least one other parishioner. Buss-mann’s sexual misconduct came to light when the first complainant’s husband became suspicious, taped a phone conversation, confronted his wife and reported Bussmann to the Archdiocese. The second complainant was discovered during the criminal investigation related to the sexual misconduct with the first complainant. At sentencing, the complainants described their shame and pain. They talked about how their sexual relationships with Buss-mann imperiled their marriages and damaged their faith. Instead of supporting the complainants and their families, their church community turned against them.
The plurality in Part II.A distinguishes the psychotherapist provision as eliminating the consent defense only if the state proves facts that render consent legally ineffective, either through proof of therapeutic deception or proof that the patient suffered from a mental dysfunction or was emotionally dependent. The core elements of the analogous psychotherapist provision are: (1) sexual penetration by the actor; (2) the actor is a psychotherapist; (3) the complainant is a patient of the psychotherapist; and (4) the sexual penetration occurred: (a) during the psychotherapy session; or (b) outside the psychotherapy session if an ongoing psychotherapist-patient relationship exists. Minn.Stat. § 609.344, subd. 1(h).4 A patient is defined as a person who seeks or obtains psychotherapeutic services. Minn. Stat. § 609.341, subd. 16 (2006). Psychotherapy is the professional treatment, assessment, or counseling of an emotional illness, symptom, or condition. Minn.Stat. § 609.341, subd. 18 (2006). Accordingly, Minn.Stat. § 609.344, subd. 1(h) does not require proof of the patient’s mental or emotional state, only the nature of the relationship: that psychotherapy was sought for treatment, or even just assessment, of a mental or emotional symptom. Thus, the stark distinction posited by the plurality does not exist. The therapeutic-deception and emotionally-dependent provisions identify separate circumstances of criminal activity.5
*100The plurality suggests that criminal liability would attach for sexual relationships between unmarried clerics and parishioners who were incidentally engaged in discussing spiritual or religious matters. But the statute requires more: that sexual penetration “occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private.” Minn.Stat. § 609.344, subd. 1(1 )(ii). The statute contemplates situations in which a cleric provides professional assistance on an ongoing basis, in private, to someone in need.
The plurality in Part II.A. concludes that the clergy provision incorporates religious doctrine, as evidenced by legislative determinations about the power imbalance in all private clergy-counselee relationships that negates true consent. But this is no different than legislative determinations about the power imbalance in all private psychotherapist-counseling relationships, even for assessments of emotional symptoms, that negates true consent. There is no constitutional impediment to legislative review of the power imbalance in clergy-counseling relationships and the factors aggravating the imbalance. Cf. Drevlow v. Lutheran Church, Mo. Synod, 991 F.2d 468, 472 n. 3 (8th Cir.1993) (stating that “[w]hile the district court cannot constitutionally decide the validity of [religious] beliefs, * * * the court may properly determine their existence.”) (internal citation omitted). It is for the legislature “to define by statute what acts constitute a crime. * * * [T]he role of the judiciary is limited to deciding whether a statute is constitutional, not whether it is wise or prudent legislation.” State v. Merrill, 450 N.W.2d 318, 321 (Minn.1990) (internal citation omitted).
In summary, the clergy sexual misconduct statute is based on secular legislative determinations, not on church doctrine. The statute does not require examination of doctrinal matters. That the prosecution chose to present irrelevant church-doctrine evidence, which was completely unnecessary to prove liability as required by the statute, does not demonstrate that it is the statute that fosters the entanglement. I would hold that the clergy sexual misconduct statute does not implicate First Amendment entanglement concerns.
Unconstitutionality as Applied
In Part III of the plurality opinion, a majority of the court concludes that the statute is unconstitutional as applied in this case and reverses the conviction, remanding for a new trial. I cannot agree.
An “as applied” challenge argues that the statute is unconstitutional as applied to the individual’s conduct. See, e.g., Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (stating the “general rule that constitutional adjudication requires a review of the application of a statute to the conduct of the party before the Court”); Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (noting cases involving religious freedom in which the Court held that a statute was “unconstitutionally applied in particular circumstances because it interfered with an individual’s exercise of those rights”).
*101But the court in Part III does not question the constitutionality of the statute as applied to Bussmann’s conduct. Rather it is the state’s presentation of church-doctrine evidence that is the driving force of the rationale stated and the disposition reached in Part III. The issue then would be whether the admission of that evidence violated Bussmann’s Fourteenth Amendment due process right to a fair trial, not the constitutionality of the criminal statute as applied to Bussmann’s conduct. The evidentiary issues, however, are not properly before us. Bussmann included the evidentiary issues in his petition for review. In granting review of the constitutional claims, we expressly declined review of the remaining issues. Consequently, those issues were neither briefed nor argued before us. Because we do not decide issues that are not properly before us, I would not base the resolution of this case on the evidentiary issues.
Furthermore, even if it were appropriate to review those evidentiary issues, they would not warrant reversal. Given that (1) the trial court provided limiting instructions to the jury, (2) the state and defense counsel made clear in closing arguments that the jury’s duty was to apply Minnesota law and not church law, and (3) the sole issue in dispute was the existence of an ongoing clergy-counselee relationship, in light of defense counsel’s concessions in opening remarks that “Mr. Bussmann was a priest” and that he “had sexual relations” with two parishioners, I would hold that the evidentiary errors with which the court is concerned were harmless.
For these reasons I would affirm the conviction.
. The opinion of Justice Hanson is the majority opinion because a majority of the court joins in Parts I and III and in the disposition announced in that opinion. Parts II.A and II.B are the opinions of two different pluralities.
. Minn.Stat. § 609.344, subd. 1(1), criminalizes sexual conduct if:
(l) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and:
(i) the sexual penetration occurred during the course of a meeting in which the complainant sought or received religious or spiritual advice, aid, or comfort from the actor in private; or
(ii) the sexual penetration occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private. Consent by the complainant is not a defense[.]
. Hearing on H.F. 873, H. Comm.Crim. J. and Fam. L., Mar. 24, 1993 (audio tape) (comments of Assistant Ramsey County Attorney) (testifying the statute covered clergy “as recognizing this very intimate and personal relationship that had an inherent power differential so that abuse of that relationship should be criminalized'').
. Minn.Stat. § 609.344, subd. 1(h) criminalizes sexual conduct if:
(h) the actor is a psychotherapist and the complainant is a patient of the psychotherapist and the sexual penetration occurred:
(i) during the psychotherapy session; or
(ii) outside the psychotherapy session if an ongoing psychotherapist-patient relationship exists.
Consent by the complainant is not a defense[.]
. Minn.Stat. § 609.344, subd. l(a)-(n) identifies fourteen discrete circumstances of third-*100degree criminal sexual conduct. Subdivisions l(i) and l(j) describe separate circumstances of criminal conduct if a person engages in sexual penetration and
(i) the actor is a psychotherapist and the complainant is a former patient of the psychotherapist and the former patient is emotionally dependent upon the psychotherapist;
(j) the actor is a psychotherapist and the complainant is a patient or former patient and the sexual penetration occurred by means of therapeutic deception. Consent by the complainant is not a defense!.]