¶1¶ 69. {concurring). With the exception of footnote 4, I join the majority opinion. I write separately because I would address Monika Lackershire's argument that the plea colloquy inadequately addressed the elements of the offense of second degree sexual assault of a child, pursuant to Wis. Stat. § 948.02(2).
¶2¶ 70. Section 948.02(2) provides in relevant part: "Whoever has . .. sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C felony." Wisconsin Stat. § 948.01(6) defines "sexual intercourse" as the "vulvar penetration as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person's body or of any object into the genital *453or anal opening either by the defendant or upon the defendant's instruction." Lackershire argues that the phrase "by the defendant or upon the defendant's instruction" is an element of the offense to which Lackershire pled. The State disagrees, asserting that the phrase is not a separate element of the offense charged here, but an element of a different type of sexual assault involving a victim's insertion of an object into his or her own genital or anal opening at the defendant's instruction. The State further argues that Lackershire's "non-consent" is a defensive matter to be raised by her.
¶3¶ 71. Because the majority concludes that the guilty plea colloquy was inadequate as a result of the circuit court's failure to make sufficient inquiry to satisfy the factual basis requirement, the majority has declined to reach the issue concerning the elements of the offense of second degree sexual assault of a child. Majority op., ¶ 5 n.4. Because the issue is squarely before us and is likely to impact a significant number of future cases, I would address it to provide guidance to trial and appellate courts. Such a determination could also ultimately impact the language of the Wisconsin Jury Instructions with respect to sexual assault cases. See, e.g., Wis JI — Criminal 2101B and 2104.
¶4¶ 72. For the forgoing reasons, I respectfully concur.