¶1dissenting.
¶2[¶ 35] Because the majority opinion criminalizes what is not included in the plain language of the statute, I respectfully dissent.
¶3I
¶4[¶ 36] Section 12.1-20-03(l)(e), N.D.C.C., provides:
1. A person who engages in a sexual act with another, or who causes another to engage in a sexual act, is guilty of an offense if:
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e. That person knows or has reasonable cause to believe that the other person suffers from a mental disease or defect which renders him or her incapable of understanding the nature of his or her conduct.
¶5[¶ 37] The central question here is whether the alleged victim was capable of understanding the “nature of the conduct.” The legislature has told us words are understood in their ordinary sense unless a contrary meaning plainly appears. N.D.C.C. § 1-02-02. The “nature” of something is defined as the “(a) essential character or constitution” or “(b) distinguishing qualities or properties.” Webster’s Third New Int’l Dictionary of the English Language Unabridged 1507 (16th ed.1971). Black’s Law Dictionary defines “nature” as “1. A fundamental quality that distinguishes one thing from another; the essence of something.” Black’s Law Dictionary 1050 (7th ed.1999).
¶6[¶ 38] Words must be construed according to the context in which they appear. N.D.C.C. § 1-02-03. This Court interprets statutes as a whole. Maurer v. Wagner, 509 N.W.2d 258, 260 (N.D.1993). Section 12.1-20-03, N.D.C.C., punishes a person who engages in a “sexual act” with another or causes another to engage in a “sexual act.” The definition of “sexual act” as contained in N.D.C.C. § 12.1-20-02 refers only to the mechanics of the act. In State v. Kingsley, 383 N.W.2d 828, 830 (N.D.1986), this Court explains the phrase “of understanding the nature of his or her conduct” by saying the victims “were incapable of understanding or appreciating the nature of what was taking place or that they had any ability to stop or otherwise cope with the activity that was, in effect, being unilaterally perpetrated upon them.” The Court emphasized that this lack of understanding must be by reason of mental disease or defect. Id.Thus, applying these rules of construction, requiring that a victim under N.D.C.C. § 12.1-20-03(l)(e) not understand all the consequences and implications of sexual relations when she understands the mechanics, the nature of what is taking place and the right to stop *672the activity, criminalizes more than what the statute intended.
¶7[¶ 39] Although the majority has often told us the primary goal in discerning the meaning is to determine the intent of the legislation, looking first to the plain meaning of the words and then, if there is ambiguity, looking to things such as the history of our legislation, here the majority looks neither to the plain meaning of the words nor to the history of our legislation. The majority never discusses Kingsley. Instead, it looks to the interpretation of different statutory language enacted by other states’ legislatures and interpreted by other states’ courts.
¶8[¶ 40] In its discussion of the intermediate interpretation in ¶ 14, the majority cites an Alaska case which dealt with a statute that explicitly requires that the victim be “incapable of understanding the nature or consequences of the person’s conduct.” Alaska Stat. § 11.41.470(4) (emphasis added). Moreover, the case from Illinois also cited in support of an intermediate construction was more in line with the broad definition of “understanding the nature of his or her conduct” adopted in People v. Easley, 42 N.Y.2d 50, 396 N.Y.S.2d 635, 364 N.E.2d 1328 (1977). People v. McMullen, 91 Ill.App.3d 184, 46 Ill.Dec. 492, 414 N.E.2d 214, 217 (1980).
¶9[¶ 41] If we were to appropriately look to other states, our statute is more in line with New Jersey’s definition of “mentally defective” at issue in State v. Olivio, 123 N.J. 550, 589 A.2d 597 (1991), which limits its protection to persons who are incapable of understanding the nature of the conduct because of a mental disease or defect. N.J. Stat. Ann. 2C:14-lh. Acknowledging the difficulty in determining “how much or how little knowledge of sex should be ascribed to a person in order for that person to be considered ‘mentally defective’ under [N.J. Stat. Ann. 2C:14-lh],” the New Jersey Supreme Court stated that knowledge in this context extends “only to the physical or physiological aspects of sex, [and not] to an awareness that sexual acts have probable serious consequences, such as pregnancy and birth, disease, infirmities, adverse psychological or emotional disorders, or possible adverse moral or social effects.” Olivio, 589 A.2d at 602, 605. Under this limited interpretation, the test entails knowledge of the act’s distinctive sexual nature and an understanding of and ability to assert the right to refuse to engage in sex, free of any analysis of the victim’s understanding of possible consequences. Id. at 599.
¶10[¶ 42] Finally, it is a well-set4tled rule of statutory construction that any ambiguity in a criminal statute must be resolved in favor of the defendant. E.g., State v. Rambousek, 479 N.W.2d 832, 834 (N.D.1992).
¶11II
¶12[¶ 43] The record does not support the result reached by the majority or concurring opinions.
¶13[¶ 44] Mosbrucker’s argument is stated in ¶ 7 of the majority’s opinion: “Mos-brucker argues [Dr. Degree’s] testimony regarding whether Doe could consent to the sexual act or understand the implications of having sex were irrelevant in determining whether she had a mental disease or defect rendering her incapable of understanding the nature of the conduct.”
¶14[¶ 45] Dr. Degree’s testimony focused on Doe’s ability to understand the social and health implications of sexual intercourse and her ability to decide whether defendant was an appropriate person with whom to have a relationship. When Dr. Degree testified about Doe’s ability to consent to sex, his response revolved around Doe’s inability to understand the potential *673social and health problems and not whether she understood that her body is inviolable. When asked whether Doe was able to understand “what the act of sexual intercourse would be,” he responded, “I believe she would.” He testified Doe “may agree to have sex because it is something that she feels that she has to do to keep him, without thinking whether this person is someone you should have a sexual relationship with.” This statement could, however, describe many situations in which the persons involved do not suffer from any mental defect or disease. At issue is not the wisdom in Doe’s choice of sexual partner, but whether she understood what she was doing.
¶15[¶ 46] The record indicates that Doe knew and understood the distinctively sexual nature of the conduct and that she could say no. She testified she knew what sex is and knew the mechanics of it. She also testified that on the night she and the defendant were having sex, she was aware of what she was doing, but it was not something they had discussed prior to its happening. According to her testimony, she did not want to have sex. Thus, if it were true that Doe is subject to exploitation and might “agree” to sex because it is something she has to do when approached by someone she regards as an authoritative figure, as Dr. Degree testified, and Doe did not understand she could refuse to engage in sex, as the concurrence suggests, then Doe would not have resisted; she would just have complied. Instead, she testified she tried to push the defendant off of her but she could not because he was “too big.” This shows she understood that she could refuse. Moreover, the nurse who examined Doe testified that when she asked Doe what she meant by sexual assault, Doe explained she had sex against her will. This, too, shows Doe understood she had a right to refuse.
¶16[¶ 47] Doe further testified she told her father about what had happened the next day. According to her father’s testimony, she told him, “Dad, I did something that I’m embarrassed about. Jeff and I had sex last night.” He further testified about asking her why she did it, to which she apparently responded that she was curious about it. He testified he and Doe’s mother had previously talked to Doe about sex and its implications — “she knew she could get pregnant.” According to his and Doe’s testimony, one of Doe’s sisters had been in trouble for having sex without being married.
¶17[¶ 48] Doe’s testimony reflects she did not complain to her father; she just told him what had happened, even expressing her desire to be in a girlfriend-boyfriend relationship with the defendant. The evidence supports the conclusion that Doe might have told her father in part out of fear of being pregnant and its possible consequences because Doe’s mother had allegedly told her that if she were to have sex without being married, she would have to leave the house. Moreover, Doe did not seek medical assistance until two weeks after the incident, and even then, although she was then alleging she had been sexually assaulted, her main fear was the risk of being pregnant — according to the nurse’s testimony, Doe was “very fearful of pregnancy.” The nurse also testified that her examination of Doe was strictly medical— whether Doe had contracted any sexually transmitted disease or was pregnant — and not for the preservation of any evidence of sexual assault.
¶18[¶ 49] In conclusion, the record does not support defendant’s conviction under N.D.C.C. § 12.1-20-03(l)(e). The evidence shows Doe understands the distinctive nature of a sexual act and even its possible implications as well as her right to refuse to engage in sex.
¶20[¶ 50] The record here reflects that Doe had a substantially greater understanding than the victims in State v. Kingsley, 383 N.W.2d 828 (N.D.1986). In Kingsley, at 830, the majority said the record:
quite clearly demonstrates that they were incapable of understanding or appreciating the nature of what was taking place or that they had any ability to stop or otherwise cope with the activity that was, in effect, being unilaterally perpetrated upon them. The lack of understanding is especially evident by Pamela’s testimony that Kingsley “started doing sexual education with me.” Sharon’s lack of understanding is equally demonstrated by her testimony that she did not understand what Kingsley “was doing or why.”
¶21As Justice Levine, id. at 831, wrote in her special concurrence:
It is well to bear in mind that there is no presumption of incompetence simply because a developmentally disabled person is receiving special services or living at a residence for the developmentally disabled. North Dakota Century Code § 25-01.2-03. Nor is a developmentally disabled person deprived of the right to “interact” with members of the opposite sex. NDCC § 25-01.2-03(3).
¶22IV
¶23[¶ 51] I would reverse the criminal judgment.
¶24[¶ 52] DALE V. SANDSTROM