[566]*566DE MUNIZ, J.
This is a case about judicial restraint and faithful adherence to our constitutional duty to accord the legislature and the citizens of Oregon substantial deference in fixing the appropriate punishment for criminal behavior. Ultimately, it is the fidelity of the majority of this court to its constitutional duty that controls the outcome of this case.
Defendant was tried and convicted of two counts of rape in the second degree. ORS 163.365. At sentencing, the trial court refused to impose the mandatory minimum sentence of 75 months for the crime of second-degree rape required by ORS 137.707, finding that such a sentence would be unconstitutional as applied to this defendant, under Article I, section 16, of the Oregon Constitution.1 The court instead imposed a sentence of 35 months’ imprisonment pursuant to the sentencing guidelines. On appeal, the state seeks reversal and a remand for resentencing on the ground that the trial court erred in failing to impose the statutory mandatory minimum sentence of 75 months. For the reasons set forth below, we reverse and remand for imposition of the 75-month sentence required by ORS 137.707.
The facts of the underlying convictions are not in dispute. Defendant was born July 15, 1980. His “girlfriend,” Strobel, was born July 25, 1983. Thus, defendant was three years and 10 days older than Strobel. On two different occasions, October 20 and 21, 1996, Strobel came to the house where defendant was staying. Each time, she went into the bedroom where defendant was sleeping. She woke up defendant, joined him in the bed, and engaged in sexual foreplay. Defendant and Strobel then engaged in sexual intercourse.
Under ORS 163.365, “[a] person who has sexual intercourse with another person commits the crime of rape in the second degree if the other person is under 14 years of age.” A defendant charged with rape in the second degree has [567]*567a complete defense to the charge if “the victim’s lack of consent was due solely to incapacity to consent by reason of being less than a specified age, [and the defendant] was less than three years older than the victim at the time of the alleged offense.” ORS 163.345(1). Because Strobel was under the age of 14 at the time of the offenses, and because defendant was more than three years older than she was, defendant violated ORS 163.365 when he had sexual intercourse with her. Strobel’s inability to consent was due solely to her age.
Defendant’s convictions for these crimes are not at issue on appeal. The only issue is whether the trial court correctly determined that a mandatory minimum prison sentence of 75 months for these crimes would constitute cruel and unusual punishment under the circumstances.
At sentencing, the state presented evidence that defendant had been referred to the juvenile department 14 times, for activities such as theft, carrying a concealed weapon, minor in possession, unauthorized entry into a motor vehicle, and curfew violations. The state also presented evidence that, after the crimes at issue here, defendant had been adjudicated on a charge of third-degree robbery and committed to MacLaren2 for a period of five years. Defendant admitted membership in a gang, and the state presented evidence by MacLaren staff that defendant was believed to be involved in gang activity at MacLaren.3 For that reason, the staff viewed him as only marginally amenable to treatment. The police officer who initially investigated the present crimes testified that he had become familiar with defendant in 1995 because defendant and other gang members often “hung around” in a local mall. The officer opined that defendant was devious and adept at manipulating adults.
A letter from Strobel was introduced into evidence:
“When I first met Justin, my friend told him that I was 14 or 15 when I wasn’t. He really didn’t know how old I was [568]*568for quite a while. As far as I am concerned, Justin didn’t do anything wrong. From the beginning I never thought that these charges should have been made against Justin. I still think this whole thing is stupid and should have never been pursued. As far as I am concerned, I was never a victim of rape. I don’t think the DA thought I was a victim either because even though I wanted to talk to her, she never would talk to me. That made me feel like she really wasn’t interested in the truth or justice.
“Maybe what happened wasn’t right legally, but we didn’t know we were breaking any law. We just thought we were in love, and it happened because we both wanted it to. I know that everybody thinks we are too young to know what love is, but we don’t think so. I still love Justin, and I know he still loves me.”
Strobel’s mother, who originally reported the sexual contact between her daughter and defendant to the authorities, also testified that although she did not condone what her daughter and defendant had done, she did not consider “two young kids making love” to be rape. She further stated that she thought that sentencing defendant “to over six years in jail is really cruel and unnecessary, and he doesn’t deserve it.”
The state presented evidence from Dr. Charlene Sabin, a psychologist, who testified that, when a child under the age of 14 engages in sexual activity, it may harm her self-image. Sabin further opined that, if a child engages in sexual activity because she believes herself to be in love, it may be more detrimental because she might “further internalize that behavior as the way to relate in future relationships.” Sabin also indicated that, if the young female’s mother condones the sexual activity, it would imply that “sex is the coinage of relationships[.]”
At sentencing, the trial court held that imposition of the mandatory minimum sentence of 75 months for defendant’s crime would constitute cruel and unusual punishment, in violation of Article I, section 16, of the Oregon Constitution. The court noted that defendant was troubled and out of control and in need of a structured program to develop work and academic skills. The court found, however, that a sentence of 75 months would be cruel and unusual, given the [569]*569circumstances of the crimes, and instead imposed a sentence of 35 months of imprisonment. The court stated:
“I do find that the victim in this case, [Strobel], says that she is not a victim. Whether she’s a victim is a philosophical question and one that many psychiatrists would disagree with her. I further find that [Strobel] insists vocally that she was a willing participant and that the defendant in this case — at least at that time, October ’96 — was unaware of her true age.
“I further find that the victim and the victim’s mother, who testified in this proceeding, oppose categorically not only the proposed Measure 11 sentence but even the pursuing of a criminal charge in the first place. And I find that their position was vocal and constant, and it came to the attention of this Court even before there was a conviction in this case.
“I further find that had the victim, [Strobel], been ten days older, there would be no crime at all here, none, but she wasn’t ten days older.”
The court then imposed concurrent sentences on both second-degree rape convictions for a total of 35 months, followed by three years of post-prison supervision.
On appeal, the state argues that the trial court erred in holding that the mandatory minimum sentence of 75 months required for the crime of second-degree rape was cruel and unusual as applied to the facts of this case. The state’s brief devotes a great deal of attention to the sentencing court’s diatribe against Measure 11 sentencing. A recitation of the sentencing court’s attitude toward Measure 11, and the state’s disagreement with the sentencing court, would benefit neither bench nor bar, nor would it contribute to the resolution of this case. We therefore turn to the question of whether the trial court correctly concluded as a matter of law that imposing a sentence of 75 months’ imprisonment [570]*570for defendant’s crimes would be cruel and unusual under Article I, section 16, of the Oregon Constitution.
Article I, section 16, of the Oregon Constitution, provides, in relevant part, that “[cjruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.” The test for determining whether a sentence violates the proportionality provision in Article I, section 16, is whether the sentence is “so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper.” State v. Isom, 313 Or 391, 401, 837 P2d 491 (1992). That test was first conceived by the court in Sustar v. County Court of Marion Co., 101 Or 657, 665, 201 P 445 (1921). In Sustar, the defendant had been convicted of possession of “moonshine” and, in a writ of review proceeding, argued that his sentence of six months in the county jail and a $500 fine violated the proportionality provision of Article I, section 16.
In rejecting Sustar’s constitutional challenge, the court first quoted from Weems v. United States, 217 US 349, 54 L Ed 793, 30 S Ct 544 (1910), where the Supreme Court in an Eighth Amendment case had stated:
“It is a precept of justice that punishment for crime should be graduated and proportional to the offense.”
Drawing on that language, the Sustar court stated:
“In order to justify the court in declaring punishment cruel and unusual with reference to its duration, the punishment must be so proportioned to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.” 101 Or at 665 (emphasis added).
Defendant did not contend at trial nor does he in this court argue that the sentence mandated for his crimes violates the Eighth Amendment. However, we initially examine the United States Supreme Court’s “proportionality” jurisprudence because our test is derived from Weems and also to provide some history about the concept of durational proportionality in sentencing and the history and substantial deference paid by courts to the legislature’s prerogative in fixing the appropriate punishment for crime.
[571]*571Whether Weems was truly a proportionality case, or one involving only the manner or method of punishment, has been the subject of some debate, as is the question of whether the Eighth Amendment actually extends to the proportionality of prison terms. In Solem v. Helm, 463 US 277, 284, 103 S Ct 3001, 3006, 77 L Ed 2d 637, 645 (1983), a majority of the Supreme court stated that the final clause of the Eighth Amendment “prohibits not only barbarian punishments, but also sentences that are disproportionate to the crime committed.”
The Solem court held that a proportionality analysis under the Eighth Amendment was applicable to capital, as well as noncapital, cases. However, the court cautioned that, in noncapital cases, “successful challenges to the proportionality of particular sentences will be exceedingly rare,” and that reviewing courts should grant “substantial deference to the broad authority that legislatures necessarily possess in determining the type and limits of punishments for crimes.” Id. at 289-90.
To determine whether a particular sentence is constitutionally disproportionate to the crime, the Solem majority fashioned a three-part test indicating that a proportionality analysis under the Eighth Amendment should involve consideration of: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.
Eight years later, however, the court severely fractured over whether constitutional proportionality was a component of the Eighth Amendment prohibition against cruel and unusual punishment. In Harmelin v. Michigan, 501 US 957, 111 S Ct 2680, 115 L Ed 2d 836 (1991), the Court upheld the defendant’s mandatory life sentence for possession of 650 grams of cocaine but could not reach agreement on the issue of constitutional proportionality. Justice Scalia in the lead opinion, joined by Justice Rehnquist, wrote that “Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee.” 501 US at 965. However, in a separate opinion concurring in the decision to uphold the sentence, Justices Kennedy, O’Connor and Souter allowed that the [572]*572Eighth Amendment does encompass a narrow proportionality principle. In that concurring opinion, Justice Kennedy stated (1) “that the fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is properly within the province of legislatures not courts,” (2) that successful challenges to the proportionality of particular sentences are exceedingly rare, and (3) that the Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime. Id. at 998,1001.
The contours of the Eighth Amendment are imprecise primarily because a proportionality component is not explicit in the wording of the Eighth Amendment. However, Article I, section 16, does contain a proportionality clause. Although the Oregon Supreme Court has not explicitly adopted the United States Supreme Court’s proportionality methodology, the Oregon Supreme Court has identified similar principles as controlling under Article I, section 16.
First, the Oregon Supreme Court long ago recognized that establishing punishments for specific crimes is a matter reserved for the legislature, subject to constitutional limitation. In State v. Smith, 128 Or 515, 524, 273 P2d 323 (1929), the court stated:
“The power to declare what punishment may be assessed against those convicted of crime is not judicial, but legislative, power, controlled only by the constitution.” (Citation omitted.)
Second, successful challenges based on constitutional proportionality have been exceedingly rare in Oregon. See State v. Shumway, 291 Or 153, 630 P2d 796 (1981) (a statutory scheme that provides a greater penalty for a lesser included offense violates Article I, section 16, of the Oregon Constitution); Cannon v. Gladden, 203 Or 629, 281 P2d 233 (1955) (same). Both Shumway and Cannon involved vertically disproportionate sentences, which are not an issue here.
Third, Article I, section 16, like the Eighth Amendment, forbids only those sentences that are grossly disproportionate to the crime. For example, in State v. Teague, 215 Or [573]*573609, 336 P2d 338 (1959), the defendant, without a “substantial” criminal record, was sentenced to 12 years for forgery. The court appears to have considered the sentence “lengthy” when compared to the crime but, nevertheless, rejected the defendant’s Article I, section 16, challenge:
“We are asked to hold that these sentences are so excessive as to violate § 16, Art 1, of the Constitution of Oregon. The record indicates that the defendant had not previously had a substantial criminal record. There is little to indicate why the trial judges imposed sentences of this severity in view of the nature of the crime and the prior conduct of the defendant.
“We cannot, however, impose our judgment on the trial court. State v. Boloff, 138 Or 568, 646 4 P2d 326, 7 P2d 775 [1932]. The sentence is not one which is ‘so proportioned to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.’ Sustar v. County Court of Marion County, 101 Or 657, 665, 201 P 445 [1921]. We could not attempt to determine what prompted the court in the first instance to impose the seemingly lengthy sentence of twelve years. We are obliged, however, to suggest that the only recourse now available lies with the Chief Executive or State Board of Parole and Probation. If the facts of the case and conduct of the defendant warrant undoubtedly that body will provide suitable relief.” Teague, 215 Or at 611.5
Having identified these three principles as relevant to the assessment of a proportionality challenge under Article I, section 16, we turn first to an examination of the nature of the crime at issue here. Statutory rape laws were among the first laws ever composed by mankind. They are “at least as ancient as the 4000-year-old Code of Hamurabi.” Rita Eidson, The Constitutionality of Statutory Rape, 27 UCLA L Rev 757, 762 (1980). English law made statutory rape a crime as early as 1275, and those laws were adopted in the United States via the English common law. Id. The traditional cornerstones of statutory rape laws have always been that a female, younger than some specified age, cannot give consent [574]*574to engage in sexual activity, and a mistake of fact by the offender as to the female’s age is no defense to the crime.6
Oregon’s first criminal code set the age of consent at 14 years when it took effect on May 1,1865. General Laws of Oregon, ch 53, § 731 (Deady 1845-1864). Section 521 provided that,
“if any person shall carnally know any female child, under the age of fourteen years, * * * such person shall be deemed guilty of rape, and upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than three, not more than twenty years.” Id. at ch 43, § 521.
The code was renumbered in 1872 with the same language appearing in Title II, chapter II, section 1733. Hill’s Annotated Laws of Oregon, v 1, pp 749 and 897 (1887). Amendments to the criminal code in 1895 raised the age of consent to 16, providing that,
“if any person over the age of sixteen years shall carnally know any female child under the age of sixteen years, * * * such person shall be deemed guilty of rape, and upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than three, not more than twenty years.” Bellinger & Cotton, The Codes and Statutes of Oregon, 635 (1901).
The rape statute was renumbered several times before 1953, when the legislature enacted the Oregon Revised Statutes (ORS), combining OCLA 23-420 (rape) with OCLA 26-940 (proof of penetration) to create ORS 163.210 (rape; penetration needed), which provided:
“(1) Any person over the age of 16 years who carnally knows any female child under the age of 16 years * * * is guilty of rape, and shall be punished by imprisonment in the penitentiary for not more than twenty years.
“(2) Proof of actual penetration into the body is sufficient to sustain an indictment for rape.”
[575]*575Essentially, the prohibition against persons over the age of 16 years from having carnal knowledge of minor females under the age of 16 remained unchanged between 1895 and 1971.
In 1971, the legislature repealed ORS 163.210 and replaced it with the three statutory degrees of rape defined under ORS 163.355 (third-degree rape), ORS 163.365 (second-degree rape), and ORS 163.375 (first-degree rape). Or Laws 1971, ch 743, §§ 109, 110, 111, and 432. The new scheme raised the overall age of consent for minor females to 18 but graduated the degrees of rape based on the victim’s age. In addition, ORS 163.345 was enacted to provide a defense for offenders less than three years older than the victim. In 1971, ORS 163.365, which defined the degree of rape that is relevant here, provided:
“(1) A male who has sexual intercourse with a female commits the crime of rape in the second degree if:
“(a) The female is incapable of consent by reason of " mental defect, mental incompatibility or physical helplessness; or
“(b) The female is under 14 years of age.
“(2) Rape in the second degree is a class B felony.”
ORS 163.365 has been amended twice since it was enacted in 1971. In 1989, subsection (a) was deleted. Or Laws 1989, ch 359, § 1.7 In 1991, Oregon’s rape laws were made gender neutral, replacing the terms “male” and “female” with “person.” Or Laws 1991, ch 628, § 2.
The history of Oregon’s statutory rape laws thus reveals that Oregonians have always considered statutory rape a serious crime generally mandating some term of incarceration. Currently, under the sentencing guidelines, a conviction for rape in the second degree carries with it a presumptive sentence of 35 months’ imprisonment, the sentence imposed by the trial judge here. The term of imprisonment [576]*576under the former indeterminate sentencing scheme is 10 years’ imprisonment. ORS 161.605(2).
Defendant offers little argument that rape in the second degree is not a serious crime. Instead, he focuses mainly on the particular facts and circumstances of his offenses, arguing that his age, the age of the victim, the victim’s refusal to see herself as a victim, and the victim’s mother’s express desire that defendant not be sentenced to prison renders the mandated sentence “so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper.”
Rape in the second degree generally does not involve force, but involves sexual intercourse where one of the participants is under the age of 14. That being so, the victim’s attitude about herself or her mother’s perception that sexual intercourse between a 16-year-old and a 13-year-old is “love making” and does not merit prison is not a particularly rare or significantly mitigating circumstance under the statutory definition of the crime. Likewise, at least in the context of this constitutional challenge to the mandatory sentence, little significance can be ascribed to the fact that defendant could have asserted a complete defense to the criminal charge if he or the victim had a different birth date. The legislature is entitled to define the limits of the defense. Here, it established a defense for persons less than three years older than the victim, not three years and 10 days. In other words, defendant’s conduct fits squarely within the definition of the crime, he had no defense, and there is nothing in the facts or circumstances indicating that his conduct is of a kind or quality “rarely” captured by the statutory definition of rape in the second degree.
Having examined the nature and particulars of the crime, we now turn to the question of whether the mandatory sentence at issue here is “so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper.” We begin with the obvious. A sentence mandated by the legislature or citizenry, no matter how severe it may be perceived by some, does not violate Article I, [577]*577section 16, of the Oregon Constitution, unless a court can conclude that the moral sense of all reasonable persons is shocked by the sentence.
Here, defendant, as opposed to the dissent, makes no argument that Oregon’s mandatory sentencing law is somehow out of step with the sentencing laws of other states for similar crimes.8 Nor does defendant make any empirically based argument about the penal sentiments of “all reasonable persons,” as to the imposition of a mandatory sentence for this form of rape. Rather, defendant and the dissent assert that, under the particular facts and circumstances of this case, it is a self-evident proposition that the mandatory 75-month sentence is shocking to “all reasonable people.” (Emphasis added.) We do not agree that the proposition is self evident or that, in a case like this, our collective, albeit subjective, judgment about the proper length of a sentence for this particular crime is particularly weighty in the analysis. See Teague, 215 Or at 611. Certainly, there may be the rare occasion when a crime or its particulars is so petty or [578]*578trivial that we can confidently conclude, without more, that the mandatory sentence for that crime is self-evidently shocking to the moral sense of all reasonable people. However, as explained above, and unlike the dissent, we do not view either the crime or the circumstances here as petty or trivial.
On the other hand, the state argues that the voters’ and legislators’ obvious intolerance of juvenile crime and their collective belief that sexual intercourse with a person under 14 years of age deserves a mandatory sentence of 75 months is a conclusive expression by society that the moral sense of all reasonable people is not shocked by the sentence. For now, we do not adopt or endorse the state’s argument or resolve that question because there is sufficient precedent in this court and the Supreme Court demonstrating conclusively that imposing the 75-month sentence mandated for defendant’s crime is not so shockingly disproportionate as to violate Article I, section 16.9
Here, it is true that defendant had no past history of sex crimes. However, at sentencing, defendant described himself as a “gangster,” his juvenile record is deplorable and the best that can be said for his prognosis for rehabilitation is that it is less than likely, given his history and his behavior since the crimes at issue occurred. As indicated above, in Teague, a defendant with no substantial criminal record received a prison sentence of 12 years for the crime of forgery. Although recognizing that the sentence was “seemingly lengthy” in view of the nature of the crime and the prior conduct of the defendant, the court stated that it was “not one which is ‘so proportioned to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.’ ”Id. at 611, quoting Sustar, 101 Or at 665 (emphasis added). More recently, in State v. Rhodes, 149 Or App 118, 941 P2d 1072 (1997), rev den 326 Or 390 (1998), the defendant, a 15-year-old convicted of sex [579]*579abuse in the first degree for touching his half-sister’s vagina, contended that the 75-month mandatory sentence he received pursuant to Measure 11 was unconstitutional as applied in his case. We rejected the defendant’s claim, stating simply that the sentence in light of the circumstances was “not so disproportionate as to shock the moral sense of all reasonable persons.” Id. at 123 (emphasis added). The dissent’s conclusions are incompatible with these cases.
Instead, the dissent asserts that our assessment of the “harshness of the penalty” is deficient apparently because we fail to account for defendant’s juvenile status. 166 Or App at 590-91. The dissent is wrong. Oregon’s very first criminal code set the minimum sentence for “statutory rape” at “no less than three, [nor] more than twenty years.” Not less than three years in prison is a form of minimum sentence and, because there was no juvenile code in 1865, a 16-year-old was subject to a minimum sentence. Second, the current statutory scheme does, in fact, account for defendant’s juvenile status, a significant point apparently overlooked or not understood by the dissent. The fact is that defendant is serving his sentence under the Oregon Youth Authority in the same facility and is offered the same reformative treatment as other offenders incarcerated under the juvenile code. ORS 137.124(5)(a) (cross referencing ORS 137.707); ORS 420A.010(5)(b).
The dissent’s refusal to accord the legislature and the citizens of Oregon the deference due in establishing the punishment for specific crimes is exemplified by its comparison of various crimes and lesser sentences it considers more serious than the rape crime at issue here. However, what the dissent never explains is why the legislature may not rationally determine that the rape crime at issue here is more serious than robbery, or assault, or the other crimes mentioned by the dissent.10 Within constitutional limits, it is for the legislature, not the courts, to determine the relative seriousness of crimes. Comparing apples and oranges, as the dissent does, [580]*580fails to advance the discussion in any meaningful manner. See, e.g., State v. Turner, 296 Or 451, 676 P2d 873 (1984).
Finally, the dissent fails to deal with recent precedent from this court that severely undercuts every premise relied on by the dissent. As indicated above, in Rhodes, we rejected a 15-year-old’s as-applied challenge to his 75-month sentence for sex abuse. The dissent fails to explain why the 75 months for inappropriate touching meted out in Rhodes to that 15-year-old was constitutional, and here 75 months is not constitutional where this 16-year-old defendant engaged in multiple acts of sexual intercourse with a 13-year-old child. It is patently inconsistent for the dissent to assert that a sentence of 75 months in this case is “so disproportionate as to shock the moral sense of all reasonable persons” when the sentence we approved in Rhodes was not.
The Legislative Branch has defined the crime of second-degree rape to encompass defendant’s conduct, and the citizens of Oregon and the legislature have, as is their prerogative, determined that a conviction for rape in the second degree mandates a sentence of 75 months’ imprisonment regardless of the circumstances of the crime. We must give substantial deference to that prerogative. See Jensen v. Gladden, 231 Or 141, 372 P2d 183 (1962) (“It is the province of the legislature to establish the penalties for the violation of the various criminal statutes and if the penalties are founded upon an arguably rational basis we have no authority to hold that they are invalid.”).
Individual judges may believe that public safety, deterrence and reformation of this offender may be achieved by a sentence different than the one mandated. However, our individual or even collective belief about the wisdom of the mandated sentence is not the test. Instead, it is our duty, under the constitution, to uphold the mandated sentence unless we can say that the sentence shocks the “moral sense of all reasonable” people. That we cannot say.
Reversed and remanded for resentencing under ORS 137.707.
4 The state argues on appeal that uncontradicted evidence demonstrated that defendant knew Strobel’s age at the time of the crimes. The state is incorrect. Evidence presented at trial showed that defendant knew Strobel’s age at the time he was interviewed by a police officer in November 1996. That evidence is not inconsistent with the evidence presented at sentencing that defendant did not know Strobel’s true age until after the crimes occurred. Therefore, we accept the trial court’s factual finding, because evidence in the record supports it.