delivered the following dissenting opinion.
The majority opinion of this Court, affirming the conviction of the appellant, is based on the theory that the public policy of this State as embodied in the “juvenile causes” statutes dealing with juvenile delinquency, and those who contribute thereto, is such as to justify a finding that the assault with *164intent to commit an unnatural or perverted sexual act, is of the type of assaults which constitutes a crime against the public generally, to which the consent of the victim is not a defense.
I agree with the majority that the fifteen-year-old prosecuting witness, as well .as the appellant, could have been proceeded against in the Juvenile Court of St. Mary’s County. But I cannot agree that the judgment should be affirmed. Even if the juvenile causes statutes have established a cognizable public policy relating to the care and treatment of delinquent children, and the punishment of those who “contribute” to such delinquency, which I do not deny, still there is one aspect of such policy which is an insurmountable barrier to that desirable end in this case. So far as the age when juvenile courts cease to have jurisdiction over juveniles is concerned, the policy is not uniform throughout the State. The jurisdictional age .limit in Baltimore City is fixed at sixteen years. In the counties it is eighteen years. Therefore, it is my belief that the controlling decision in this case Las in effect establisLed different ages wlren juvenile delinquents could consent to an assault witL intent to commit :sodomy or an unnatural or perverted sexual act, depending ■on where the unlawful act takes place. In the city the “age ■of consent” would be sixteen. Elsewhere in the State the “age of consent” would be eighteen. This creates an anomalous situation, which is untenable.
For the aforegoing and other reasons, I have an abiding conviction that the assault charged, as despicable as it may 'he, is of the type which does not concern the peace and dig:nity of the State in that the assault was not accompanied by the threat of serious injury or wrong. Such offenses are primarily considered to be crimes against the person, to which the consent of the person wronged is a complete defense. Assaults of this type, often referred to as indecent assaults, which is a collective term used to describe them, include an assault with intent to rape, Commonwealth v. Shrodes, 354 Pa. 70, 46 A. 2d 483; an assault by taking indecent liberties with an adult woman of sound mind, Commonwealth v. Kendall, 113 Mass. 210; an assault by a homo*165sexual touching the genitals of another man, McDermett v. United States (D. C. Mun. App.), 98 A. 2d 287; and an assault with intent to commit sodomy, People v. Hickey, 109 Cal. 275, 41 P. 1027.
An assault with intent to commit sodomy or an unnatural or perverted sexual act is, in one sense, merely a form of attempt and as such is indictable as a common law offense, but in the absence of a specific statutory provision making an assault with intent to commit such crimes aggravated assaults, there is no doubt that the words in the indictment “with intent * * * to commit an unnatural sexual act * * *, to wit: sodomy,” do not increase the enormity of the assault charged. See State v. Rand, 132 Me. 246, 169 A. 898. In fact it was conceded at the argument on appeal that the words connoting an intention to commit an unnatural or perverted sexual act, as well as an assault, did not raise the grade of the offense charged above that of simple assault.
At common law the consent of the one assaulted to the act complained of prevents the perverse act from amounting to an assault, and, in fact constitutes a defense. 'Phis is so because courts treat the absence of consent as an essential element of the offense. See People v. Dong Pok Yip, 164 Cal. 143, 127 P. 1031, and Liebscher v. State, 69 Neb. 395, 95 N. W. 870.
Unlike rape, sodomy or an unnatural or perverted sexual act may be committed between two persons both of whom consent, and, regardless of which is the aggressor, both may be prosecuted, but in People v. Hickey, supra, the Supreme Court of California, in the course of interpreting the California penal statute concerning the crime of sodomy, held that because simple assault is a necessary element of the offense of assault with intent to commit the crime of sodomy with or upon a human being, consent is a defense to a prosecution for assault with intent to commit the additional offense as well as simple assault. See also People v. Swist, 136 Cal. 520, 69 P. 223, and People v. Oates, 142 Cal. 12, 75 P. 337.
Of course, consent to bar a conviction must have been freely given by a person capable of consenting. Consent to a criminal assault by a person w'ho is either so young or men*166tally deficient as to be incapable of comprehending the nature of the act, is no consent at all. Beausoliel v. United States (C. A., D. C.), 107 F. 2d 292; People v. Conklin, 122 Cal. App. 83, 10 P. 2d 98. For this reason the age and mentality of the subject of an indecent assault should always be considered in determining the presence or absence of consent. People v. Dong Pok Yip, supra; Gregoire v. State, 211 Md. 514, 128 A. 2d 243.
Some courts, under some circumstances, have gone even further, such as the New York Court of Appeals did in People v. Gibson, 232 N. Y. 458, 134 N. E. 531, relied on by the majority, in which the defendant was convicted of an indecent assault upon a fifteen-year-old girl, who had freely consented, when it held, by a four-three decision, that the assault concerned a breach of the public peace because the impairment of a child’s morals was a statutory misdemeanor. The split decision in that case was obviously the result of a consideration of the effect of the New York statute concerning morals of children. This State does not have a comparable criminal statute.
The decision in the Gibson case, supra, was cited with approval in State v. Chicorelli, 129 Conn. 601, 30 A. 2d 544, also relied on by the majority, in which the defendant was convicted of an indecent assault on a woman under a statute which provided that consent was not a defense to such assaults. In that case, in which some doubt was expressed by the Supreme Court of Connecticut, in view of the nature of the offense, whether consent would justify a disregard of the invasion of the public welfare and morality even in the absence of the statutory provision, it appears, nevertheless, that the Court based its decision on the clear mandate of the Connecticut statute proscribing consent as a defense in indecent assault cases. There is no such criminal statute in this State.
Although a majority of the courts in this country have held that the consent of a victim to an assault with intent to rape is no defense when the child assaulted is below the age she can consent to “statutory” rape or carnal knowledge, such decisions, as was the result in the Gibson case, supra, are generally based on the theory that public policy frowns *167upon the consent of an innocent victim to such indecent assaults. See State v. Roby, 194 Iowa 1032, 188 N. W. 709, and other cases on this point cited in the majority opinion. In this State, the public policy on this subject has been settled by legislative enactment. Code, 1951, Article 27, Section 14, specifically provides that “* * * an assault with intent to have carnal knowledge of a female child under the age of 14 years” shall be a felony. On the other hand, the dictum in the Chicorelli case, supra, to the effect that it may be questionable whether consent to an indecent assault would justify a disregard of the invasion of the morals and general welfare of the public, even in the absence of a statutory policy on the question, which is primarily a legislative and not a judicial function, is clearly not the public policy of this State. Other than the juvenile causes statutes, which are not pertinent here for the reason stated, I am unaware of any policy on the matter in this State. Ordinarily, a policy is not recognized as public unless it is derived or derivable by clear implication from the established law of the state as found in its Constitution, its laws, or its judicial decisions. Alderman v. Alderman, 178 S. C. 9, 181 S. E. 897; People v. Hawkins, 157 N. Y. 1, 12, 51 N. E. 257.
In my opinion this Court should follow the rule laid down in the Hickey case, supra, to the effect that — consent is a defense to simple assault — simple assault is an element of assault with intent to commit an unnatural or perverted sexual act —consent is a defense to the assault to commit the additional offense as well as to simple assault — subject, of course, to a consideration of the age and mentality of the person wronged to determine the presence or absence of consent.
There is no doubt that the prosecuting witness did in fact consent to the assault charged in the indictment, and I think it is clear that at the time he consented he was perfectly capable of consenting. I also think that the distinction between this prosecuting witness and the prosecuting witnesses in the Gregoire case, supra, is too clear to require comment. The prosecuting witness in this case was a person of sufficient age and mentality to make an intelligent choice to do the act proposed by his assaulter. Gregoire v. State, supra; People *168v. Dong Pok Yip, supra. Having consented, an essential element of the crime was lacking, and such consent constituted a defense.
It is my belief that the trial court should have granted the motion for a directed verdict of “not guilty”, pursuant to Rule 7 (b), now Rule 738 a, (Directed Verdict — At Close of State’s Evidence), for the reason that the evidence was insufficient to sustain the appellant’s conviction of the offense charged in the indictment.