Criminal Allocation in Idylia

The Idylia constitution, like our own, is interpreted to require the prosecution in criminal cases to prove each and every element of a criminal offense beyond reasonable doubt. See In re Winship, 397 U.S. 358 (1970). But what is an "element'' to which this mandate applies?

Idylia has adopted a criminal statute that defines the offense of first-degree touching. The elements of this offense, to be proved by the prosecution beyond reasonable doubt, are (1) a touching, (2) lack of consent of the victim, and (3) intent. Conviction of first-degree touching carries a penalty of life imprisonment. The defendant may present various affirmative defenses, as follows:

(1) The touching was not premeditated (this reduces the offense to second degree, with a maximum penalty of 20 years);

(2) The touching did not result in the victim's death (this reduces the offense to third degree, with a maximum penalty of 10 years); and

(3) The touching did not result in serious bodily harm (this reduces the offense to fourth degree, with a maximum penalty of one year).

Is this statute constitutional? Could Idylia have gone even further and made consent to the touching a defense? Consider these questions in light of the next two cases and the commentary that follows.