[439]*439OPINION OF THE COURT BY
NAKAMURA, J.
The question of law reserved for our determination by the Family Court of the First Circuit1 is whether Sexual Abuse in the First Degree is committed when a person touches the covered breasts of a thirteen-year-old female to gratify his sexual desire. We conclude it is not.
[440]*440I.
The indictment returned by the Grand Jury charged the defendant with two counts of Sexual Abuse in the First Degree. Count II accused him of “intentionally [having] sexual contact [with his thirteen-year-old adopted daughter] by rubbing her breasts, thereby committing the offense of Sexual Abuse in the First Degree in violation of Section 707-736(l)(b) of the Hawaii Revised Statutes.”2 In the course of trial before the family court, it became obvious that the gravamen of the offense described by Count II consisted of rubbing the child’s breasts through her clothing. At the close of the State’s case the defendant moved for a judgment of acquittal on that count.
The question posed by the motion was whether “touching of the sexual or other intimate parts of a person” through clothing constituted “sexual contact” as defined in HRS § 707-700(9). See supra note 2. After considering the legal memoranda submitted by counsel, the trial judge voiced an inclination to rule that the sexual contact proscribed by HRS § 707-736 did not include touching through clothing. She noted, inter alia, that the drafters of the Penal Code, in defining “sexual conduct” for purposes of regulating obscenity and pornography pursuant to Chapter 712 of the Code, drew “a distinction between the touching of clothed or unclothed sexual or other intimate parts of the body” but chose not to in defining “sexual contact” for purposes of applying Chapter 707.3 Since [441]*441a ruling in defendant’s favor would not have brought the perplexing legal issue confronting her to this court for review and the issue is likely to recur yet may continue to evade review,4 she reserved the question for decision by an appellate court as allowed by HRAP 15.5 See supra note 1.
11.
We approach the task at hand with knowledge “that a legislature [must] speak[] with special clarity [in] marking the boundaries of criminal conductf] [and] courts must decline to impose punishment for actions that are not ‘“plainly and unmistakably’” proscribed. United States v. Gradwell, 243 U.S. 476, 485 (1917).” Dunn v. United States, 442 U.S. 100, 112-13 (1979). For we are bound by “fundamental principles of due process which mandate that no individual [shall] be forced to speculate, at peril of indictment, whether his conduct is prohibited. Groyned v. City of Rockford, 408 U.S. 104, 108 (1972); United States v. Harriss, 347 U.S. 612, 617 (1954); Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939); McBoyle v. United States, 283 U.S. 25, 27 (1931).” Dunn v. United States, 442 U.S. at 112. And like the trial judge, we are unwilling to say the bounds of felonious conduct have been unmistakably marked to include the act attributed to the defendant.
A.
The conduct proscribed by HRS § 707-736(1 )(b) is intentional sexual contact with a person below the age of fourteen, and the offense is [442]*442committed when there is “any touching of the sexual or other intimate parts [of a thirteen-year-old] with the intent of gratifying . . . sexual desire.” See supra note 2. Clearly, there is “touching” within the meaning of the statute if the sexual or other intimate part itself were rubbed. The touching here, however, was through the victim’s clothes. Granted, the relevant language can readily be construed to include such conduct within its proscriptions. But it is subject also, as the defendant maintains, to a reading that contact with a person’s clothed breasts does not constitute “sexual contact.”
In forwarding her question, the family court judge adverted to “sexual contact” as defined in HRS § 707-700(9) and “sexual conduct” as defined in HRS § 712-1210(8). See supra note 5. The former, she noted, was couched in terms of “touching . . . the sexual or other intimate parts of a person” while the latter explicitly spoke of “physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or the breast or breasts of a female.” See supra notes 2 and 3 (emphasis added). The judge realized, of course, that “ ‘[w]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject... is significant to show that a different intention existed.' (23 Cal. Jur. 778, § 154; Estate of Garthwaite (1933), 131 Cal. App. 321, 326, [21 P.2d 465].” People v. Valentine. 28 Cal. 2d 121, 142, 169 P.2d 1, 14 (1946).
That “sexual conduct” is defined and employed in Part II of Chapter 712 of the Penal Code, entitled Offenses Related to Obscenity, and “sexual contact” appears in a separate chapter covering Offenses Against the Person has not escaped us. Still, obscenity and sexual abuse unquestionably are related subjects, and the definitions were adopted expressly for use in penal statutes regulating conduct with sexual connotations. Lacking other direction from the legislature, we would have to say the omission noticed by the trial judge is significant and the language in question is susceptible of two constructions, that urged by the prosecutor and the narrower one urged by the defendant.6
[443]*443B.
“[W]hen choice has to be made between two readings of what conduct [the legislature] has made a crime, it is appropriate, before we choose the harsher alternative, to require that [the legislature] should have spoken in language that is clear and definite.” United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22 (1952) (quoted in United States v. Campos-Serrano,
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[439]*439OPINION OF THE COURT BY
NAKAMURA, J.
The question of law reserved for our determination by the Family Court of the First Circuit1 is whether Sexual Abuse in the First Degree is committed when a person touches the covered breasts of a thirteen-year-old female to gratify his sexual desire. We conclude it is not.
[440]*440I.
The indictment returned by the Grand Jury charged the defendant with two counts of Sexual Abuse in the First Degree. Count II accused him of “intentionally [having] sexual contact [with his thirteen-year-old adopted daughter] by rubbing her breasts, thereby committing the offense of Sexual Abuse in the First Degree in violation of Section 707-736(l)(b) of the Hawaii Revised Statutes.”2 In the course of trial before the family court, it became obvious that the gravamen of the offense described by Count II consisted of rubbing the child’s breasts through her clothing. At the close of the State’s case the defendant moved for a judgment of acquittal on that count.
The question posed by the motion was whether “touching of the sexual or other intimate parts of a person” through clothing constituted “sexual contact” as defined in HRS § 707-700(9). See supra note 2. After considering the legal memoranda submitted by counsel, the trial judge voiced an inclination to rule that the sexual contact proscribed by HRS § 707-736 did not include touching through clothing. She noted, inter alia, that the drafters of the Penal Code, in defining “sexual conduct” for purposes of regulating obscenity and pornography pursuant to Chapter 712 of the Code, drew “a distinction between the touching of clothed or unclothed sexual or other intimate parts of the body” but chose not to in defining “sexual contact” for purposes of applying Chapter 707.3 Since [441]*441a ruling in defendant’s favor would not have brought the perplexing legal issue confronting her to this court for review and the issue is likely to recur yet may continue to evade review,4 she reserved the question for decision by an appellate court as allowed by HRAP 15.5 See supra note 1.
11.
We approach the task at hand with knowledge “that a legislature [must] speak[] with special clarity [in] marking the boundaries of criminal conductf] [and] courts must decline to impose punishment for actions that are not ‘“plainly and unmistakably’” proscribed. United States v. Gradwell, 243 U.S. 476, 485 (1917).” Dunn v. United States, 442 U.S. 100, 112-13 (1979). For we are bound by “fundamental principles of due process which mandate that no individual [shall] be forced to speculate, at peril of indictment, whether his conduct is prohibited. Groyned v. City of Rockford, 408 U.S. 104, 108 (1972); United States v. Harriss, 347 U.S. 612, 617 (1954); Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939); McBoyle v. United States, 283 U.S. 25, 27 (1931).” Dunn v. United States, 442 U.S. at 112. And like the trial judge, we are unwilling to say the bounds of felonious conduct have been unmistakably marked to include the act attributed to the defendant.
A.
The conduct proscribed by HRS § 707-736(1 )(b) is intentional sexual contact with a person below the age of fourteen, and the offense is [442]*442committed when there is “any touching of the sexual or other intimate parts [of a thirteen-year-old] with the intent of gratifying . . . sexual desire.” See supra note 2. Clearly, there is “touching” within the meaning of the statute if the sexual or other intimate part itself were rubbed. The touching here, however, was through the victim’s clothes. Granted, the relevant language can readily be construed to include such conduct within its proscriptions. But it is subject also, as the defendant maintains, to a reading that contact with a person’s clothed breasts does not constitute “sexual contact.”
In forwarding her question, the family court judge adverted to “sexual contact” as defined in HRS § 707-700(9) and “sexual conduct” as defined in HRS § 712-1210(8). See supra note 5. The former, she noted, was couched in terms of “touching . . . the sexual or other intimate parts of a person” while the latter explicitly spoke of “physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or the breast or breasts of a female.” See supra notes 2 and 3 (emphasis added). The judge realized, of course, that “ ‘[w]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject... is significant to show that a different intention existed.' (23 Cal. Jur. 778, § 154; Estate of Garthwaite (1933), 131 Cal. App. 321, 326, [21 P.2d 465].” People v. Valentine. 28 Cal. 2d 121, 142, 169 P.2d 1, 14 (1946).
That “sexual conduct” is defined and employed in Part II of Chapter 712 of the Penal Code, entitled Offenses Related to Obscenity, and “sexual contact” appears in a separate chapter covering Offenses Against the Person has not escaped us. Still, obscenity and sexual abuse unquestionably are related subjects, and the definitions were adopted expressly for use in penal statutes regulating conduct with sexual connotations. Lacking other direction from the legislature, we would have to say the omission noticed by the trial judge is significant and the language in question is susceptible of two constructions, that urged by the prosecutor and the narrower one urged by the defendant.6
[443]*443B.
“[W]hen choice has to be made between two readings of what conduct [the legislature] has made a crime, it is appropriate, before we choose the harsher alternative, to require that [the legislature] should have spoken in language that is clear and definite.” United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22 (1952) (quoted in United States v. Campos-Serrano, 404 U.S. 293, 297 (1971)). It is virtually self-evident that the drafters of the Penal Code could easily have spoken in clearer and more definite terms. The definition of “sexual conduct” gives evidence of the ease with which the task could have been accomplished, and we need not venture far for further proof if such were required.
The Table of Derivation appended to the Penal Code indicates the language of HRS § 707-700(9) was derived from § 2301 of the proposed draft of the Michigan Criminal Code, which followed § 130.00 of the Revised Penal Laws of New York. See 7 A HRS, at 499 (1976). But the Michigan legislature rejected the proposed language, adopting instead a more explicit definition to effectuate its purpose 7 The relevant definition thus reads:
“Sexual contact” includes the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification.
Mich. Comp. Laws Ann. § 750.520a. (k) (1985 Supp). Moreover, the New York statute which served as the model for HRS § 707-700(9) has since been amended to read:
“Sexual contact” means any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing.
[444]*444Peter M. Wilkins (Arthur E. Ross on opening brief, Peter M. Wilkins on reply brief), Deputy Prosecuting Attorneys, for appellant.
Richard Pollack (Susan Barr on the brief), Deputy Public Defenders, for appellee.
New York Penal Law § 130.00(3) (Consol. 1976).
Read in the light of these changes in the statutory definitions that served as the model for our definition of “sexual contact,” the term is reasonably susceptible of the construction urged by the defendant. And “[w]hen language... reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted.” People v. Ralph, 24 Cal. 2d 575, 581, 150 P.2d 401, 404 (1944) (quoted in People v. Valentine, 28 Cal. 2d at 143, 169 P.2d at 14). See State v. Smith, 59 Haw. 456, 461, 583 P.2d 337, 341 (1978); Coray v. Ariyoshi, 54 Haw. 254, 261, 506 P.2d 13, 17 (1973). Sexual Abuse in First Degree, therefore, is not committed when one touches the clothed breasts of a thirteen-year-old female to gratify his sexual desire.8
The case is remanded for proceedings not inconsistent with this opinion.