specially concurring.
[¶ 49] I agree that this appellant’s conviction must be reversed. I write separately because I do not believe Wyo. Stat. Ann. § 14-3-105 (LexisNexis 2003) is constitutional. The statute is too vague to give meaningful notice of what conduct it proscribes, it is too susceptible to arbitrary prosecution, and it leaves it up to individual juries to decide what is, and what is not, a crime. See Lori L. Brand, Casenote, Criminal Law—Wyoming’s Indecent Liberties Statute—Victim Consent is Now a “Relevant Fact for Jury Deliberation;” Did Pierson Put a Bandage on Wyoming’s Criminal Code Bullet Wound? Pierson v. State, 956 P.2d 1119 (Wyo.1998), XXXIV Land & Water L.Rev. 187 (1999).
[¶ 50] The statute provides, in pertinent part:
*1044(a)Except under circumstanee[s] constituting sexual assault in the first, second or third degree as defined by W.S. 6-2-302 through 6-2-304, any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony. Except as provided by subsection (b)of this section, a person convicted under this section shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years, or both.
Wyo. Stat. Ann. § 14-3-105(a). Subsection (c)defines “child” as “a person under the age of eighteen (18) years.” Wyo. Stat. Ann. § 14-3-105(c). In addition, the jury was instructed in this case, as many juries before have been instructed, that “immoral” means “not moral,” “immodest” means “not modest,” and “indecent” means “not decent.”
[¶ 51] The statute’s reference to first-, second- and third-degree sexual assault only indicates what conduct is not prohibited by its terms. Sexual intrusion, for instance, is not covered by the indecent liberties statute7 in the following circumstances, because it is forbidden by one of the other sexual assault statutes:
1. First-degree if by force. Wyo. Stat. Ann. § 6-2-302(a)(i) (LexisNexis 2003).
2. First-degree if by threat of death. Wyo. Stat. Ann. § 6-2-302(a)(ii).
3. First-degree if the victim is physically helpless. Wyo. Stat. Ann. § 6-2-302(a)(iii).
4. First-degree if the victim is mentally helpless. Wyo. Stat. Ann. § 6-2-302(a)(iv).
5. Second-degree if by future threats. Wyo. Stat. Ann. § 6 — 2—303(a)(i) (LexisNex-is 2003).
6. Second-degree if by preventing resistance. Wyo. Stat. Ann. § 6-2-303(a)(ii).
7. Second-degree if by administering a substance. Wyo. Stat. Ann. § 6-2-303(a)(iii).
8. Second-degree if erroneously thought spouse. Wyo. Stat. Ann. § 6-2-303(a)(iv).
9. Second-degree if the victim is less than twelve and the actor is four years older. Wyo. Stat. Ann. § 6-2-303(a)(v).
10. Second-degree if by a position of authority. Wyo. Stat. Ann. § 6-2-303(a)(vi).
11. Second-degree if during medical diagnosis or treatment. Wyo. Stat. Ann. § 6-2-303(a)(vii).
12. Third-degree if the victim is less than sixteen and the actor is four years older. Wyo. Stat. Arm. § 6-2-304(a)(i) (LexisNexis 2003).
[¶ 52] Because all of this conduct is statutorily omitted from coverage by the indecent liberties statute, we (and the jury) are left to speculate what conduct is not omitted, and, by implication, is included. In the context of the present case, the last-numbered circumstance is most relevant. It can be third-degree sexual assault for an eighteen-year-old who is four years older than the victim to have consensual sexual intercourse with a fourteen-year-old, but it cannot be third-degree sexual assault for an eighteen-year-old who is less than four years older than the victim to have consensual sexual intercourse with a fourteen-year-old. The question is whether the actor in the latter situation may be found guilty of indecent liberties. The answer is “yes,” if a jury decides his conduct was not modest, or not moral, or not decent.
[¶ 53] Similarly, “sexual contact” is defined as “touching, with the intention-of sexual arousal, gratification or abuse, of the victim’s intimate parts by the actor, or of the actor’s intimate parts by the victim, or of the clothing covering the immediate area of the victim’s or actor’s intimate parts[.]” Wyo. Stat. Ann. § 6-2-301(a)(vi) (LexisNexis 2003). Sexual contact is not forbidden by the indecent liberties statutes if it constitutes *1045first-, second- or third-degree sexual assault, which include the following circumstances:
1. Second-degree if serious bodily injury under any first- or second-degree circumstance. Wyo. Stat. Ann. § 6 — 2—303(b).
2. Third-degree if the victim is less than fourteen and the actor is an adult, with no sexual intrusion and no serious bodily injury. Wyo. Stat. Ann. § 6-2-304(a) (ii).
3. Third-degree if under any first- or second-degree circumstance, with no sexual intrusion and no serious bodily injury. Wyo. Stat. Ann. § 6 — 2—304(a)(iii).
4. Sexual battery if not first-, second- or third-degree sexual assault and not indecent liberties.8 Wyo. Stat. Ann. § 6-2-313(a) (LexisNexis 2003).
[¶ 54] Once again, none of this conduct, by statutory limitation, constitutes indecent liberties, leaving some doubt as to when sexual contact may be indecent liberties. For example, it is third-degree sexual assault for an adult (someone eighteen or older) to have sexual contact with a victim who is less than fourteen, so that conduct cannot be charged as indecent liberties. A person caring to measure his future conduct against these statutes could then presume that it is not. third-degree sexual assault to have sexual contact with a victim who is fourteen. But is it indecent liberties? Similarly, it is not third-degree sexual assault for a seventeen-year-old to have sexual contact with a victim who is less than fourteen. But is it indecent liberties? The answer to both of these questions is “yes,” if a jury decides the conduct was not modest, not moral, or not decent.
[¶ 55] The problem with this statutory scheme is that it is the legislature who has defined the crimes in the sexual assault statutes, while it is left up to individual juries to define the crimes of immodest, immoral or indecent liberties. The answer could differ from county to county, from town to town,’ from jury to jury. Some examples: Consensual sexual intercourse between an eleven-year-old girl and a fourteen-year-old boy is not first-, second- or third-degree sexual assault. Is it indecent liberties? It is if the jury decides it is. Consensual sexual intercourse between a fifteen-year-old boy and an eighteen-year-old girl is not first-, second- or third-degree sexual assault. Is it indecent liberties? It is if the jury decides it is. Consensual sexual intercourse between a sixteen-year-old girl and a thirty-year-old man is not first-, second- or third-degree sexual assault. Is it indecent liberties? It is if the jury decides it is. Consensual sexual contact between a fourteen-year-old boy and a fourteen-year-old girl is not first-, second- or third-degree sexual assault. Is it indecent liberties? It is if the jury decides it is.
[¶ 56] Fundamentally, there are three major flaws with the crime of indecent liberties as it exists in the Wyoming statutes. First, the line between acceptable and unacceptable behavior is indiscernible until the jury returns with a verdict. Second, it is misleading to have the age of consent be sixteen in the third-degree sexual assault statute, but eighteen in the indecent liberties statute. On page 134 of Volume 2 of the Wyoming Statutes, it is legal for a twenty-year-old man to have sexual intercourse with a seventeen-year-old girl. Wyo. Stat. Ann. § 6-2-304. On page 404 of Volume 3 of the Wyoming Statutes, the same conduct may be found illegal by a jury. Wyo. Stat. Ann. § 14-3-105. How can it be that consensual sexual intercourse with a sixteen-year-old or seventeen-year-old violates community standards of modesty, morality, or decency when the legislature, the official declarant of public policy, has declared that such is perfectly legal?
[¶ 57] The third major flaw in the indecent liberties statute was highlighted by the jury in the instant case when it sent a note to the judge asking if the appellant’s conduct had to be found immodest and immoral and indecent. The majority rightfully states that these options are stated in the disjunctive in the statute, so they must be charged, proven, and found separately. In the future, a special verdict form will allow the jury to specify what crime was committed, but it will not solve the key problem. It is simply too much to ask of a person that he be able to predict whether the twelve members of a particular *1046jury sometime in the future will determine that his particular' conduct was not sufficiently modest or not sufficiently moral or not sufficiently decent to meet community standards.
[¶ 58] Either “immodest,” “immoral,” and “indecent” all mean the same thing, or they mean different things. If the majority is correct, and I believe it is, that the words are used in the disjunctive and must be considered separately by the jury, then they must also be charged separately and proven separately. Perhaps this most directly reveals the vagueness in the statute. What facts will the prosecutor have to consider to decide whether certain conduct is immoral as opposed to immodest or indecent? What standard will the prosecutor apply in deciding how to charge?
[¶ 59] Admittedly, the particular facts of this case, especially the age of the “victim,” do not lend themselves well to an “as applied” challenge to the constitutionality of the statute. Further, the doctrine of stare deci-sis demands respect. But the underlying principle of our system of justice is justice. For too long, this Court has struggled to find the indecent liberties statute constitutional because it protects children when, in truth, it simply has no measurable standards. It is a well-settled rule of law that penal statutes are to be construed strictly and are not to be extended by inference or implication to eases not clearly covered by their language. Olsen v. State, 2003 WY 46, ¶168, 67 P.3d 536, 596 (Wyo.2003); Keats v. State, 2003 WY 19, ¶26, 64 P.3d 104, 112 (Wyo.2003); Horn v. State, 556 P.2d 925, 927 (Wyo.1976). We have violated this principle in construing the indecent liberties statute:
“True, what shall be regarded as ‘immodest, immoral and indecent liberties’ is not specified with particularity, but that is not necessary. The indelicacy of the subject forbids it. The common sense of the community, as well as the sense of decency, propriety, and morality which people generally entertain, is sufficient to apply the statute to each particular case, and point out unmistakably what particular conduct is rendered criminal by it. State v. Millard, 18 Ct. 574, 46 Am.Dec. 170. * * * ” Dekelt v. People, 44 Colo. 525, 99 P. 330, 331-332 (1909).
Sorenson v. State, 604 P.2d 1031, 1035 (Wyo.1979). In what other instance have we said it is appropriate that the elements of a crime not be specified with particularity? How does the “indelicacy” of the subject trump due process? Where else can the common sense of the community decide, after the fact, on a case-by-case basis, what conduct is criminal? To continue:
“ * * * Due process does not require that this statute, with its beneficent purpose, spell out in exact words what constitutes the conduct made punishable.” Millhollan v. State, 221 Ga. 165, 143 S.E.2d 730, 733 (1965); Anderson v. State, Alaska, 562 P.2d 351 (1977).
“ ⅜ * * Although the language of the statute is broad and the prohibited behavior is very general, this seems necessary in the nature of its subject matter. * * * ” (Emphasis not supplied.) People v. Beaugez, 232 Cal.App.2d 650, 43 Cal.Rptr. 28, 33 (1965).
Sorenson, 604 P.2d at 1035. Laudable sentiments, but the “beneficent purpose” of a statute does not excuse a lack of due process. Neither does it make “necessary” broad language and a general statement of prohibited behavior. I would find the statute unconstitutional.
. For simplicity's sake, I will refer to this statutory crime as “indecent liberties,” although the majority opinion makes it clear that there are actually three separate crimes: "immodest liberties," "immoral liberties,” and "indecent liberties.”
. The sexual battery statute, Wyo. Stat. Ann. § 6-2-313 opens another question: what is not covered by the other statutes that is left to be charged as sexual battery?