The opinion
SCOLNIK, Justice,
concurring in part and dissenting in part.
I concur in that portion of the court’s opinion that vacates Counts V-XII, but dissent from the affirmance of Counts I and II of the judgment.
At the time of the alleged offense, 17-A M.R.S.A. § 251(c) defined a sexual act as an act of sexual gratification. In this prosecution for gross sexual misconduct, despite the express language of the statute, the trial judge failed to instruct the jury regarding this statutory definition. This court concludes that such failure was not obvious error because it was not an omission of an essential element of gross sexual misconduct. I disagree.
The court bases its opinion on two grounds. First, sexual gratification as a culpable state of mind is not an element of genital-to-genital gross sexual misconduct, and second, the Legislature’s purpose in employing the words “of sexual gratification” was to exclude from the scope of the statute acts done “for proper medical or other valid reasons”. Although we have held that a culpable state of mind was not a requirement of gross sexual misconduct, an examination of those cases in which we have so held makes clear that they have no application to the present case. In State v. Saucier, 421 A.2d 57, 59 (Me.1980), cited in State v. Pierce, 438 A.2d 247, 251 (Me. 1981), the focus of the discussion was an analysis of section 11(5) of the Maine Criminal Code, now codified as 17-A M.R.S.A. § 34(5) (1983). Because the gross sexual misconduct statute did not expressly prescribe a culpable state of mind, such an analysis was necessary in order to determine whether a culpable state of mind was nevertheless required. What was then section 11(5) read, in pertinent part, as follows:
*1170 If a statute defining a crime in this code does not expressly prescribe a culpable mental state with respect to some or all of the elements of the crime, a culpable state of mind is nevertheless required ... unless:
A. The statute expressly provides that a person may be guilty of a crime without culpability as to those elements; or
B. A legislative intent to impose liability without culpability as to those elements otherwise appears.
We concluded in Saucier that the Legislature purposefully omitted a culpable state of mind from the gross sexual misconduct statute because the statute was “based on the premise that one person cannot accidentally or innocently induce another person to engage in sexual intercourse by means of a threat.” Saucier, 421 A.2d at 59 . Because the criminal code, 17-A M.R.S.A. § 35 (codified at section 10 at the time of these offenses), recognizes only four culpable states of mind, namely, “intentionally”, “knowingly”, “recklessly”, and “criminal negligence”, Saucier s holding thus embraced only those four classifications.
The present case is clearly distinguishable from Saucier. Saucier, and the cases preceding and following it, required a section 11(5) analysis because of the absence of an expressly prescribed culpable mental state from the gross sexual misconduct statute. In the case before the court, unlike Saucier , the requirement that the act be one of sexual gratification is expressly prescribed in plain language. It is therefore unnecessary to undertake a section 11(5) analysis by examining the legislative history to ascertain the intent of the Legislature since the legislative purpose is easily found in the plain express language of the statute. State Farm Mutual Automobile Ins. Co. v. Universal Underwriters Ins. Co., 513 A.2d 283, 286 (Me.1986); Stone v. Board of Registration of Medicine, 503 A.2d 222, 227 (Me.1986). Moreover, the culpable states of mind embraced by our holding in Saucier perforce only include those limited culpable states of mind established by the Legislature in section 35. The Legislature has not classified “sexual gratification” as a culpable state of mind, and the court is mistaken insofar as it assumes that our holding with respect to culpable state of mind in Saucier encompassed “sexual gratification”.
By defining a sexual act as one of sexual gratification, the Legislature clearly intended that the State be required to prove, as an essential element of the crime, that the conduct charged was not innocent in nature. The statute under consideration here is not based on the premise that genital-to-genital contact cannot occur accidentally or innocently. See State v. Keaten, 390 A.2d 1043, 1045, n. 6 (Me.1978) (because force and consent not an issue, when a defendant is charged with gross sexual misconduct under 17-A M.R.S.A. § 253(1)(B), “some additional prophylactic for innocent conduct may have been thought [by the Legislature to be] desirable”); compare Saucier, 421 A.2d at 59 (statute based on premise that one person cannot accidentally or innocently induce another to engage in sexual intercourse by means of a threat). Moreover, we have held that a trial court correctly interpreted the legislative intent in a gross sexual misconduct case when it instructed the jury that the State was required to prove that the acts alleged, objectively viewed, were performed for the purpose of sexual gratification. State v. Alley, 385 A.2d 1175, 1178 (Me.1978).
The court’s opinion impliedly concludes the Legislature assumed that no act of genital-to-genital contact could be innocent or accidental. Although examples of such contact without sexual gratification may be difficult to perceive, it is not the court’s function to envision a scenario of factual circumstances in which innocent or accidental contact is possible. However, one such contact that comes to mind is that which could result from the accidental contact by a sleeping parent with a child of tender years who climbed into its parents’ bed during the night, with the circumstances being brought to light subsequently by a vengeful, estranged spouse. There are undoubtedly other hypothetical circumstances that are equally plausible.
*1171 The fact that the Legislature has seen fit to amend the definition of “sexual act” to eliminate the requirement of sexual gratification from genital-to-genital gross sexual misconduct is not useful in ascertaining the intent of the prior Legislature that enacted the unambiguous statutory definition which was in effect at the time of this alleged offense. Hammond Lumber Co. v. Finance Authority of Maine, 521 A.2d 283, 289 (Me.1987) (later legislative enactments can aid statutory interpretation only if there is ambiguity in language being interpreted). No basis exists for treating as surplusage words of plain meaning expressly made a part of a definition in a penal statute. “The effect of a penal statute cannot be extended or restricted beyond the plain meaning of the language chosen by the Legislature.” State v. Vainio, 466 A.2d 471, 474 (Me.1983), cert. denied, 467 U.S. 1204 , 104 S.Ct. 2385 , 81 L.Ed.2d 344 (1984). The plain meaning of section 251(c) imposes limits on this court’s interpretive discretion, State v. Williams, 433 A.2d 765, 768 (Me. 1981), and we should not overstep these limits in a creative attempt to explain away the clear import of the statutory language here at issue.
I conclude that the court’s omission of an instruction regarding “sexual gratification” was a failure to instruct the jury on an essential element of the offense that constitutes obvious error affecting substantial rights of the defendant. Accordingly, I would vacate Counts I and II of the judgment, as well as Counts V-XI1.