¶1(concurring specially).
¶2[¶ 24.] I agree that SDCL 22-18-26 is a crime for which “the material part of the charge is a violation of a prohibition against conduct of a certain nature” under SDCL 22-l-2(l)(b). I disagree, however, that the specific/general intent dichotomy remains a part of our legislative scheme. By the legislative adoption of the culpable mental states in SDCL 22-1-2(1) based upon the Model Penal Code, the prior distinction between general and specific crimes is no longer appropriate. The Legislature defined intent not as general or specific, but in matters of degree. See SDCL 22-1-2(1). That statute sets forth the degrees of “intent with which an act is done or omitted” as including “malice,” “intent,” “knowledge,” “reckless,” and “negligence.” Each degree of intent is specifically defined. It is under these definitions that we should analyze culpability.
¶3[¶ 25.] The United States Supreme Court in United States v. Bailey discussed at length the dichotomy of general verses specific intent. 444 U.S. 394, 403-09, 100 S.Ct. 624, 631-34, 62 L.Ed.2d 575 (1980). The Court stated that the analysis no longer applies to federal crimes where Congress enacted into law specific degrees of culpability. Id. at 406, 444 U.S. 394, 100 S.Ct. at 632, 62 L.Ed.2d 575. When assigning levels of culpability, the Court said:
[When] dissecting [a criminal statute] and assigning a level of culpability to each element ... courts obviously must follow Congress’ intent as to the required level of mental culpability for any particular offense. Principles derived from common law as well as precepts suggested by the American Law Institute must bow to legislative mandates.
¶4Id.So too should our common law and prior analysis bow to our legislative mandates. The arcane pigeonholing into general or specific intent is no longer relevant.