State in Interest of LGW

STEWART, Justice,

(concurring and dissenting):

I concur in Part I of the majority opinion but dissent from the remainder. L. G. W. was not found guilty of lewdness in the trial court. This Court now, sua sponte, finds him guilty of lewdness as a lesser included offense of aggravated sexual assault. The State has not contended that he is guilty of lewdness and the issue has not been briefed by either party. I think it a violation of due process for this Court, on its own motion, to hold L. G. W. liable for conduct constituting a crime (if it had been committed by an adult) without any chance to rebut the claim. It is all the more so because the majority takes its definition of lewdness from a California case which construed a lewdness statute different from Utah’s. I think judicial limits have been crossed over in rewriting a statute in such a manner.

Nevertheless, there clearly is a serious hiatus in Utah law, as this case points out. Utah does not have a statutory provision which makes criminal that which is called a battery under the civil law. The conduct in the instant case clearly does not meet the standards of aggravated sexual assault as the majority opinion points out. I think it highly doubtful that the offensive conduct in this case constitutes lewdness under the Utah statute.

In all events, it would be appropriate for the Legislature to determine whether an amendment of the criminal code would be appropriate to prohibit highly offensive touching of another without consent.