We disagree. We have held that the issue of whether or not the accused is married to the victim is not a material element of the crime of rape. Rogers v. State (1978), 267 Ind. 654, 658, 373 N.E.2d 125, 127. The issue of marriage may be raised as a defense if such is in the facts but it is not necessary for the State to negate this. Rogers at 658-59, 373 N.E.2d at 127; Sharp v. State (1919), 188 Ind. 276, 278, 123 N.E. 161, 163.
In those jurisdictions embodying statutory schemes similar to Idaho, we find no court which has required proof of nonmarriage as an element of the crime. See Mayes v. State, 50 Md. App. 628, 440 A.2d 1093 (1982); State v. Pearce, 296 N.C. 281, 250 S.E.2d 640 (1979); Gates v. State, 91 Wis.2d 512, 283 N.W.2d 474 (Wis.Ct.App. 1979); Rogers v. State, 267 Ind. 654, 373 N.E.2d 125 (1978); State v. Goss, 293 N.C. 147, 235 S.E.2d 844 (1977); State v. Banks, 31 N.C. App. 667, 230 S.E.2d 429 (1976); Sanchez v. State, 567 P.2d 270 (Wyo. 1977). While at least two states have enacted similar statutory schemes expressly stating that nonmarriage is to be an affirmative defense to the crime of rape, Alaska Stat. § 11.41.445 (1980); Me.Rev.Stat.Anno. tit. 17-A § 252(1) (1983), the only court decision dealing with the question presented in the case at bar and in which a similar statutory scheme exists appears to be Rogers v. State, 267 Ind. 654, 373 N.E.2d 125 at 127 (1978), which stated:
[Citations omitted] "See also: Rogers v. State, (1978), 267 Ind. 654 373 N.E.2d 125. If the language of a statute is sufficiently definite to inform an average man of the conduct which is prohibited, then the statute is valid. Total clarity of purpose is an important goal, but absolute precision is not a constitutional requirement.
“As to a defense, a defendant is generally required to put the defense in issue by some means himself, as, for example, by introducing evidence or by specially pleading.” Huggins, 105 Idaho at 45, 665 P.2d at 1055 (quoting Rogers v. State, 267 Ind. 654, 373 N.E.2d 125, 127 (1978)). Having failed to do that, Mr. Peregrina waived his defense that his two enhanced convictions were part of an indivisible course of conduct.
Other states have treated the exception as a matter for the defendant to establish. See, e.g., Rogers v. State, 373 N.E.2d 125, 127 (Ind. 1978) ("The defendant cites no Indiana cases and we find none in which it is stated that the prosecution is required to prove as an essential element of the offense of rape that the defendant is not the husband of the victim . . . . As to a defense, a defendant is generally required to put the defense in issue by some means himself, as, for example, by introducing evidence or by specially pleading.") (citations omitted); State v. Bell, 90 N.M. 134, 560 P.2d 925, 933 (1977) ("Even without this authority for the general proposition that it is not incumbent upon the prosecution in a criminal case to prove a negative status created by statutory exclusion, there is authority for the specific proposition that it is not incumbent upon the prosecution in a rape trial to allege or prove that the prosecutrix was not the wife of the accused."). However, in State v. La Borde, 234 La. 28, 99 So.2d 11, 13 (1958), this Court indicated that the status of victim as an unmarried female for purposes of La.R.S
Byrd v. State (1962), 243 Ind. 452, 185 N.E.2d 422. The same is true of appellant's contention regarding intent. See Rogers v. State (1978), 267 Ind. 654, 373 N.E.2d 125. The evidence in this case is ample to support the verdict of the jury. The trial court is affirmed.
Appellant claims the State of Indiana failed to prove beyond a reasonable doubt that the victim was not the spouse of appellant. Appellant acknowledges the existence of Rogers v. State (1978), 267 Ind. 654, 373 N.E.2d 125. However, appellant attempts to distinguish Rogers from the situation in the case at bar.
"As to a defense, a defendant is generally required to put the defense in issue by some means himself, as, for example, by introducing evidence or by specially pleading." Rogers v. State, (1978) 267 Ind. 654, 658-59, 373 N.E.2d 125, 127 (citations omitted). This burden was not met in this case.
It is fundamental in criminal law that an offense must contain both mens rea (guilty mind) and actus reus (voluntary conduct) elements. Rogers v. State, (1978) 267 Ind. 654, 373 N.E.2d 125; Sills v. State, (1984) Ind., 463 N.E.2d 228, 241 ( See Givan, C.J., concurring in result). Further, criminal offenses are traditionally classified as either malum in se, i.e. inherently evil as adjudged by society, or malum prohibitum, i.e. wrong only because prohibited by legislation.
Gregory v. State, (1973) 259 Ind. 652, 291 N.E.2d 67, 68-69. See also, Rogers v. State, (1978) 267 Ind. 654, 373 N.E.2d 125, Byassee v. State, (1968) 251 Ind. 114, 239 N.E.2d 586. Newton was charged with child molesting under I.C. 35-42-4-3(a) (Burns Code Ed., Supp. 1983) and specifically with performing deviate sexual conduct. As such, the offense is adoptive of the common law offense of sodomy.