Appeal from Order Entered December 29, 1986, Court of Common Pleas, Criminal Division, Monroe County, No. 733-1986.
John B. Dunn, Assistant District Attorney, Stroudsburg, for Com., appellant.
Mark S. Love, Mount Pocono, for appellee.
Cavanaugh, Rowley and Montemuro, JJ.
[ 371 Pa. Super. Page 409]
This is an appeal from an order entered in the Court of Common Pleas of Monroe County on December 29, 1986, granting the appellee's Motion to Quash count one of appellant/Commonwealth's Criminal Information.
On August 14, 1986, the appellee was charged with one count of Involuntary Deviate Sexual Intercourse (IDSI), after allegedly having engaged in sexual intercourse per os with a 15 year old female.*fn1 The statutory definition of IDSI
[ 371 Pa. Super. Page 410]
can be found in 18 Pa.C.S.A. § 3123 and provides in pertinent part:
A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
(5) who is less than 16 years of age.
1972, Dec. 6, P.L. 1482 No. 334 § 1, effective June 6, 1973. Section 3123(5) effectively removes consent as a defense to this particular charge. The separate and distinct offense of statutory rape is defined in 18 Pa.C.S.A. § 3122 as follows:
A person who is 18 years of age or older commits statutory rape, a felony of the second degree, when he engages in sexual intercourse with another person not ...