dissenting. If we were writing on a clean slate, I would agree that “health,” as used in the first part; of General Statutes (Rev. to 1993) § 53-21,1 includes mental health. It makes absolute common sense that the legislature intended to protect not only the physical, but also the mental, health of a child. Anything less would be simply absurd. Furthermore, a person of ordi*784nary intelligence would have no difficulty in determining that the term “health” as used in the statute clearly refers to both the physical and the mental health of a child. We are not, however, writing on a clean slate.
Section 53-21 consists of two parts. The first part prohibits persons from causing or permitting a child to be placed in a situation likely to injure the child’s health or impair the child’s morals. The second part prohibits persons from doing any act likely to impair the health or morals of any child.2
In State v. Schriver, 207 Conn. 456, 542 A.2d 686 (1988), this identical statute was before this court. In Schriver, this court stated: “On its face, § 53-21 fails to articulate a definite standard for determining whether the conduct of the defendant in this case is permitted or prohibited.” Id., 461. Nevertheless, the court recognized that prior cases construing § 53-21 “provide an authoritative judicial gloss that limits the type of physical harm prohibited by § 53-21 to instances of deliberate, blatant abuse.”3 Id., 466. The state, however, argued that, even without substantial risk of physical injury, the defendant’s conduct violated § 53-21 “because it created a cognizable risk of mental injury to the victim.” Id. The unanimous court, which included two justices who are members of this panel, stated: “Any effort to extrapolate guidelines for the prosecution of persons accused of impairing the mental health of minors is hampered by *785a trio of factors: The language of § 53-21 provides no tangible criteria; none of our prior cases adds a definitive gloss; and the state has not offered any workable standards. All that is absolutely known is that the irreducible minimum of any prosecution under the second part of § 53-21 is an act directly perpetrated on the person of a minor. . . . While such acts are normally prosecuted as threats to physical health ... it is of course true that not every act directly perpetrated on a minor will threaten his or her physical health. Some acts might very well cause mental impairment without necessarily endangering the child’s physical well-being. Under an appropriately tailored penal law, the legislature would have the power to proscribe such activity.
“Section 53-21, however, is not such a law. Without the aid of prior decisions to lend an authoritative gloss to the potentially limitless language of the statute, any effort to conform § 53-21 to the mandate of due process would necessarily entail a wholesale redrafting of the statute. We decline to undertake this activity, which is within the exclusive province of the legislature.” (Citations omitted.) Id., 467-68.
Although I believe Schriver was wrongly decided, it placed on the statute a judicial gloss that cannot be cleansed in the absence of legislative action. “[W]e presume that the legislature is aware of our interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.” (Internal quotation marks omitted.) White v. Burns, 213 Conn. 307, 333, 567 A.2d 1195 (1990). Despite the fact that in Schriver this court concluded that mental health does not fall within the reach of the second part of § 53-21, the legislature, during the nine years that have elapsed since Schriver, has not acted to criminalize conduct that poses a risk of injury to a child’s mental health. I can reach no other conclusion than that the legislature has chosen to acquiesce in Schriver’s inter*786pretation of § 53-21. Indeed, several other states have specifically included mental health in their statutes governing risk of injury to children.4
The majority attempts to circumvent the conclusion in Schriver by determining that “health,” as used in the first part of § 53-21, means something different than “health” means in the second part of the same statute. I disagree.
I recognize that it is well settled that the two parts of § 53-21 prohibit two different “general types of behavior.” State v. Perruccio, 192 Conn. 154, 159, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984); State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). The first part prohibits the wilful or unlawful creation of a situation that is likely to injure the health of a child. In other words, “it is not necessary to have any touching of any part of the body to violate § 53-21; the creation of a prohibited situation is sufficient.” State v. Perruccio, supra, 159-60; see State v. Tyler-Barcomb, 197 Conn. 666, 668-69, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986) (failure to prevent boyfriend’s abuse of child). Under the secondpart, however, there mustbe physical contact to violate that provision. Specifically, it prohibits “acts directly perpetrated on the person of *787the [child] and injurious to his moral or physical well-being.” (Internal quotation marks omitted.) State v. Perruccio, supra, 159.
Although I agree that the two parts of § 53-21 prohibit two distinct types of behavior, I cannot agree that the term health has different meanings in the two parts of the statute. Under the reasoning of the majority, the second part of § 53-21 prohibits only physical harm, while the first part prohibits mental, as well as physical, harm. In my view, the risk of likely harm proscribed by the two parts of the statute is identical, or is at least a distinction without a difference, with respect to mental health. In light of this court’s conclusion in Schriver, I fail to understand how two provisions that prohibit two essentially identical risks of harm can have two different meanings within the same statute.
The majority rationalizes its conclusion by arguing that because the first part of the statute includes the phrase “life or limb” in addition to “health,” the term health in that part must also include mental health. The majority further argues that an interpretation of the statute to the contrary would render “health” superfluous in the first part of § 53-21. That is simply not so. As I previously pointed out, the first part of the statute prohibits conduct that amounts to causing or permitting a child to be placed in certain situations, and the second part prohibits acts directly perpetrated on the person of a child — both of which could involve the mental, as well as the physical, health of a child.
The strained opinion of the majority today, because of the Schriver- gloss on § 53-21, deprives the defendant of his constitutional right to due process of law — the right to fair warning of the effect of § 53-21 and the guarantee against standardless law enforcement.5 *788Although I disagree with Schriver’s conclusion that the combined, judicial gloss of prior decisions renders the term health in the second part of § 53-21 to include only physical harm, I conclude that we are bound by that judicial gloss in interpreting the same term in the same manner in the first part of the statute. I would leave it to the legislature to amend the statute specifically to include risk of harm to the mental health of a child.
Accordingly, I dissent.
General Statutes (Rev. to 1993) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.’'
This court has stated that § 53-21 proscribes two general types of conduct: “(1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the [child’s] moral or physical welfare and (2) acts directly perpetrated on the person of the [child] and usurious to his moral orphysical well-being.” (Internal quotation marks omitted.) State v. Perruccio, 192 Conn. 154, 159, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984).
In Schriver, the defendant had grabbed the thirteen year old female victim around the waist while she was delivering newspapers and said, “Don’t worry, all I want to do is feel you.” State v. Schriver, supra, 207 Conn. 457.
See, e.g., Ark. Code Ann. § 5-27-204 (a) (Michie 1993) (“[a] person commits the offense of endangering the welfare of a minor in the second degree if he knowingly engages in conduct creating a substantial risk of serious harm to the physical or mental welfare” [emphasis added]); Cal. Penal Code § 273a (Deering Sup. 1997) (“[a]ny person who . . . willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering . . . shall be punished” [emphasis added]); Haw. Rev. Stat. § 709-904 (2) (1993) (“[a] person commits the offense of endangering the welfare of a minor in the second degree if ... the person knowingly endangers the minor’s physical or mental welfare” [emphasis added]); N.Y. Penal Law § 260.10 (1) (McKinney Sup. 1997) (“[a] person is guilty of endangering the welfare of a child when ... [h]e knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child” [emphasis added]).
“That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, *788consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.. . .” (Citations omitted.) Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926); State v. Pickering, 180 Conn. 54, 60, 428 A.2d 322 (1980).
The United States Supreme Court has emphasized, however, that “the more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.’ ” Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983). “Avague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).