The defendants center their vagueness attack upon the language describing the conduct used to inflict nonconsensual sexual penetration: " by any means of sufficient consequence reasonably calculated to cause submission," (emphasis added). They recognize, as they must, that in People v. Barger, 191 Colo. 152, 550 P.2d 1281 (1976), and People v. Beaver, 190 Colo. 554, 549 P.2d 1315 (1976), we upheld the use of the phrase "of sufficient consequence reasonably calculated to overcome resistance" as not unconstitutionally indefinite in two prior statutes defining unlawful sexual behavior. In both cases we reaffirmed the principle that a penal statute framed so as to require the jury to determine a question of reasonableness "does not make it too vague to afford a practical guide to acceptable behavior."

¶ 21 In People v. Barger, 191 Colo. 152, 550 P.2d 1281 (1976), and People v. Beaver, 190 Colo. 554, 549 P.2d 1315 (1976), the Colorado Supreme Court held that statutes criminalizing sexual conduct effectuated by threats of sufficient consequence reasonably calculated to overcome resistance were not unconstitutionally vague. Relying in part on these cases, the Colorado Supreme Court held in Smith that the language "by any means of sufficient consequence reasonably calculated to cause submission" is not unconstitutionally vague in a sexual assault statute.

Moreover, every statute which we scrutinize is presumed to be constitutional and the assailant of a statute carries the burden of proving invalidity beyond a reasonable doubt. People v. Beaver, 190 Colo. 554, 556, 549 P.2d 1315-16 (1976). Where a statute is capable of two interpretations, we will interpret it so as to satisfy constitutional dictates.

We held that a jury could properly determine the question of reasonableness. In People v. Beaver, 190 Colo. 554, 549 P.2d 1315 (1976), this court upheld the deviate sexual intercourse statute, 1971 Perm. Supp., C.R.S. 1963, 40-3-404(1)(a) in the face of a vagueness challenge. The statute provided that a person commits "deviate sexual intercourse by imposition if: (a) He compels the other person to participate by any threat less than [a threat of imminent death, serious bodily harm, extreme pain, or kidnapping] but of sufficient consequences reasonably calculated to prevent resistance."

Thus, under subsection (5)(c), if proof of the facts required to prove the statutory elements of the greater offense necessarily establishes all of the elements of the lesser offense except that the offenses require proof of a different mens rea element or degree of injury or risk of injury, the lesser offense is nonetheless included. See People v. Chapman, 192 Colo. 322, 325, 557 P.2d 1211, 1213 (1976) (careless driving is lesser included offense of reckless driving under 18-1-408(5)(c) because the offenses are the same except that one involves a "greater degree of negligence"); People v. Beaver, 190 Colo. 554, 557, 549 P.2d 1315, 1317 (1976) (where proof of elements of greater offense establishes elements of lesser offense, except that "degree of harm threatened is less serious" under lesser offense, it is lesser included offense under section 18-1-408(5)(c)). Contrary to the respondent's argument, the sexual assault on a child offense is not a lesser-included offense under subsection (5)(c).

We adhere to those decisions and therefore reject the defendant's assignment of error on this point. People v. Beaver, 190 Colo. 554, 549 P.2d 1315 (1976); People v. Gould, 188 Colo. 113, 532 P.2d 953 (1975). VII.

A comparison of the two relevant statutes indicates that the greater offense cannot be committed without having committed the lesser offense, thus satisfying the test set forth in People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974), for identifying lesser-included offenses. Any doubt in this regard is overcome by our recent decision in People v. Beaver, 190 Colo. 554, 549 P.2d 1315. In People v. Beaver, supra, the defendant was charged with deviate sexual intercourse by force or its equivalent, 1971 Perm. Supp., C.R.S. 1963, 40-3-403(1)(a).

Sess. Laws 1975, ch. 171, 18-3-401 et seq. at 627. We rejected a similar claim in People v. Beaver, 190 Colo. 554, 549 P.2d 1315, in which we held that deviate sexual intercourse by imposition is a lesser included offense of deviate sexual intercourse by force or its equivalent. 1971 Perm. Supp., C.R.S. 1963, 40-3-404(1)(a); see section 18-3-404(1)(a), C.R.S. 1973.

"Total precision of expression is elusive and has never been demanded of the legislature." People v. Beaver, 549 P.2d 1315, 1316-1317 (Colo. 1976). In contrast to many cases, however, the present case appears to involve the purposeful use of general and flexible language.