dissenting. Cases, such as the one before us, that present revolting facts concerning the physical abuse of a four month old child, test the foundation of our democracy. The rule of law must be upheld even when confronted with alarming allegations of improper acts, indeed allegations of loathsome conduct on the part of the defendant. The question for this court, in cases such as this, is whether the legislature intended to make the conduct with which the defendant was charged criminal under General Statutes § 53a-59 (a) (3), assault in the first degree. It is not whether this court, were it sitting as a legislature, would have proscribed the conduct at issue. “Such action by a legislature may well be commendable, but by a court condemnable.” State v. Williquette, 129 Wis. 2d 239, 263, 385 N.W.2d 145 (1986) (Heffernan, C. J., dissenting). Simply put, we cannot craft a substantive offense ex post facto in order to include conduct that we find *237abhorrent to our sensitivities and that of the general public. It is this judicial restraint that sharply puts into focus one of the essential differences between democratic and totalitarian forms of government.
The facts of this case, as they pertain to the issues before us, are as follows: The trial court concluded that the defendant, Santos Miranda, was guilty of six counts of assault in the first degree in violation of § 53a-59 (a) (3), not because he physically abused the child, nor because he aided in the abuse of the child, but, rather, as a result of the following: (1) that he lived with the physically abused child and the child’s mother in the same household as a “live-in boyfriend”; (2) that he established a “family-like” relationship with the child— he considered himself her stepfather and he took care of her like a father; and (3) that he was aware of the child’s injuries but failed to notify the authorities, failed to obtain medical treatment for her, failed to remove her from the circumstances and failed to guard her from future abuse.1 The Appellate Court reversed the defendant’s assault convictions, holding that the “failure to act when one is under no legal duty to do so, thereby permitting a dangerous condition to exist, is not sufficient to support a conviction for assault in the first degree pursuant to § 53a-59 (a) (3).” State v. Miranda, 41 Conn. App. 333, 338-39, 675 A.2d 925 (1996). I agree with the Appellate Court.
I
The majority’s determination that the facts in this case were sufficient to create a legal duty on the part of the defendant to protect the child from parental *238abuse pursuant to § 53a-59 (a) (3) is premised on its unsupported conclusion that had the defendant been the victim’s parent, he would have had an undisputed affirmative legal obligation to protect the child from assault pursuant to § 53a-59 (a) (3). There is an affirmative obligation on the defendant and the parent, under the circumstances of this case, to protect the child, but that duty does not arise under § 53a-59 (a) (3). Rather, in this state, the obligation to act arises under General Statutes § 53-21, entitled “[i]njury or risk of injury to, or impairing the morals of, children,”2 which was enacted by the legislature many years ago to address the failure to act with respect to the welfare of a child. This court made it clear, in 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), that the proscription of § 53-21 included “deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . .” (Internal quotation marks omitted.) Here, the trial court found the defendant guilty of risk of injury with respect to the child, for which he was sentenced to the maximum term of ten years.
The defendant’s conviction under § 53-21, however, is not before us.3 What is before this court on appeal from the Appellate Court is the following certified issue: “Under the circumstances of this case, did the Appellate Court properly conclude that the defendant could not be convicted of violating General Statutes § 53a-59 (a) *239(3) because he had no legal duty to protect the victim from parental abuse?” State v. Miranda, 237 Conn. 932, 677 A.2d 1372 (1996).
II
The majority addresses an issue that is necessarily implied in the certified question — that is, whether the “conduct” referred to in § 53a-59 (a) (3) includes the failure to act. I disagree with the majority’s very tenuous argument that it does. Section 53a-59 (a) provides in part that “[a] person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .” Although “conduct” can include the failure to act under circumstances when there is a duty to act; 1W. LaFave & A. Scott, Substantive Criminal Law (1986) § 3.3., p. 282; the majority points to nothing in the text of § 53a-59 (a) (3), or its legislative history, to support its conclusion that conduct under § 53a-59 (a) (3) includes the failure to act. In fact, both the common definition of assault — “a violent attack with physical means”; Webster’s Third New International Dictionary; and the legal definition of assault— “[a]ny wilful attempt or threat to inflict injury upon the person of another”; Black’s Law Dictionary (6th Ed. 1990); belie the majority’s claim.
Moreover, by construing § 53a-59 (a) (3) to include the duty to act, the majority stands a long-standing and fundamental principle of statutory construction on its head: Penal statutes “are to be expounded strictly against an offender, and liberally in his favor. This can only be accomplished, by giving to them a literal construction, so far as they operate penally . . . .” Daggett v. State, 4 Conn. 60, 63 (1821). Indeed, what this court stated in State v. Cataudella, 159 Conn. 544, 271 A.2d *24099 (1970), is applicable to this case. “A statute imposing a penalty should receive a strict construction in favor of those who might be subject to its provisions. [N]o act should be held to be in violation . . . which does not fall within its spirit and the fair import of its language. Morin v. Newbury, 79 Conn. 338, 340, 65 A. 156 [1906]; State v. Faro, 118 Conn. 267, 273, 171 A. 660 [1934]; State v. Parker, 112 Conn. 39, 46, 151 A. 325 [1930]; Hartford-Connecticut Trust Co. v. O’Connor, 137 Conn. 267, 274, 76 A.2d 9 [1950], While a criminal statute is not to be defeated by an unreasonably strict construction of its language, it must be rather strictly construed so that the conduct made criminal will be ascertainable with reasonable certainty from a careful reading of the statute. A corollary to this is the rule that the meaning of a penal statute cannot be extended by presumption or intendment. State v. Zazzaro, 128 Conn. 160, 167, 20 A.2d 737 [1941], State v. Benson, 153 Conn. 209, 215-16, 214 A.2d 903 [1965].” (Internal quotation marks omitted.) State v. Cataudella, supra, 555-56; State v. Smith, 194 Conn. 213, 221-22 n.7, 479 A.2d 814 (1984) (“[c]riminal convictions will be upheld only when the defendant’s behavior is clearly forbidden by the statute under which he or she has been prosecuted”). A careful reading of § 53a-59 (a) (3) would never lead a rational reader to believe that a person was subject to criminal liability under the statute for the failure to act — whether the person is a stranger, a live-in boyfriend, or a parent.
Furthermore, the majority mistakenly relies on the Appellate Court’s decision in this case and in State v. Jones, 34 Conn. App. 807, 812-13, 644 A.2d 355, cert. denied, 231 Conn. 909, 648 A.2d 158 (1994), to support its claim that the failure to act is included in “conduct” under § 53a-59 (a) (3). The Appellate Court in this case did not hold that “conduct” in § 53a-59 (a) (3) included *241the omission to act; rather, it merely stated that “conduct, creating criminal liability, may be by an act or an omission to act if within the intendment of the statute.''’ (Emphasis added.) State v. Miranda, supra, 41 Conn. App. 339. The Appellate Court in this case concluded, as I do, that § 53a-59 (a) (3) does not include the “omission to act.” In State v. Jones, supra, 812, the Appellate Court did not specifically determine that the defendant’s failure to act — that is, the failure to call an ambulance when the defendant knew his child was injured— constituted criminal “conduct.” Rather, the Appellate Court in Jones affirmed the trial court’s finding that the defendant’s act of violently shaking and subjecting the child to a sudden impact was conduct that justified his conviction under § 53a-59 (a) (3).4 Id.
Ill
Nevertheless, even if the majority were correct that one person can assault another person under § 53a-59 (a) (3) by failing to act, the defendant’s conviction in this case cannot stand. By superimposing on § 53a-59 (a) (3) a common-law duty on the part of a person to act in order to protect a child from harm when that third person voluntarily assumes responsibility for the care and the welfare of the child and considers himself to have a stepfather-stepchild relationship with the child, the majority has created a new crime. See Black’s Law Dictionary (6th Ed. 1990) (“[a] crime may be defined to be an act done in violation of those duties which an individual owes to the community, and for the breach of which the law has provided that the offender shall make satisfaction to the public”); see also 1 W. LaFave & A. Scott, supra, § 1.2, pp. 8-16. In crafting this new crime, the majority ignores the fact that it is the legislature that defines substantive crimes. This division between the legislature and the court was *242established in 1971 when the legislature adopted the penal code and repealed General Statutes (Rev. to 1968) § 54-117,5 which recognized common-law crimes.6 See Public Acts 1969, No. 828, §§ 1 et seq. and 214.
*243Notwithstanding the legislature’s clear intention of stripping this court of authority to define substantive crimes, the majority interprets General Statutes § 53a-4, entitled “Saving clause,” and the official commentary to § 53a-4, as giving it jurisdiction to create the new crime of assault by a third party for failing to protect a child from abuse. In doing so, the majority grossly misinterprets § 53a-4, and ignores the final, and most critical, sentence in the commentary. Section 53a-4 provides: “The provisions of [chapter 951] shall not be construed as precluding any court from recognizing other principles of criminal liability or other defenses not inconsistent with such provisions.” Chapter 951 of the General Statutes, of which § 53a-4 is a part, does *244not define substantive crimes such as imposing new obligations, rather, it provides for principles of liability, such as the mental state required in General Statutes § 53a-5, and the liability for aiding in the criminal acts of another in General Statutes § 53a-8. The commentary to § 53a-4 that the majority conveniently omits underscores the prohibition as follows: “This does not mean, however, that the court is free to fashion additional substantive offenses, for the [penal code] precludes, by repealing section 54-117, the notion of common law crimes.” Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. (West 1994) § 53a-4, p. 223.
The opinion of this court in State v. Walton, 227 Conn. 32, 630 A.2d 990 (1993), illuminates the majority’s misinterpretation of § 53a-4. In Walton, this court adopted the Pinkerton7 principle of liability — that is, “a conspirator may be held liable for criminal offenses committed by a coconspirator that are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy.” Id., 43. The majority in Walton first explained that it was “not fashion[ing] an additional substantive offense by applying Pinkerton to the facts of [that] case . . . [because] [t]he Pinkerton principle does not create a substantive offense; it applies a particular principle of vicarious criminal liability to an appropriate case.” Id., 45 n.11. The court in Walton then explained that it could recognize the Pinkerton principle because it “has roots in our state jurisprudence.” Id., 48. The “application of the Pinkerton principle to a homicide committed in furtherance of a conspiracy has . . . been part of our jurisprudence [since 1945]. See, e.g., State v. Young, 191 Conn. 636, 642, 469 A.2d 1189 (1983); State v. McCarthy, 133 Conn. *245171, 173, 49 A.2d 594 (1946); State v. Rossi, 132 Conn. 39, 44, 42 A.2d 354 (1945).”8 State v. Walton, supra, 50-51. Finally, the Walton court concluded that it could recognize the Pinkerton principle because it was not “inconsistent with the notion of accessory liability” found in § 53a-8. Id., 52.
The majority argues that it may recognize a duty to protect a child from abuse under § 53a-59 (a) (3) because it is merely applying a long-standing principle of liability consistent with the principles of liability permitted by § 53a-4. Even if we assume that it is merely applying a principle of liability rather than creating a substantive crime, the majority, however, unlike the court in Walton, fails to cite any cases in which this court has applied this principle of liability for acts of omission.9 Moreover, the majority makes no attempt to explain why the “principle of imposing a common-law duty” to protect a child from abuse is not inconsistent with the principles of liability set forth in chapter 951 of the penal code. Indeed, the majority ignores the fact that the recognition of this new duty under § 53a-59 (a) (3) is inconsistent with the notion of accessory liability in § 53a-8. For example, this court consistently has held that one cannot be held liable under a theory of aiding and abetting, for merely being present at the time of the crime and acquiescing to the commission of the *246crime. See, e.g., State v.Pundy, 147 Conn. 7, 11, 156 A.2d 193 (1959) (“[mjere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the one who commits the crime must be distinguished from the criminal intent and community of unlawful purpose shared by one who knowingly and wilfully assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it”); State v. Thomas, 105 Conn. 757, 762, 136 A. 475 (1927) (same); State v. Enanno, 96 Conn. 420, 425, 114 A. 386 (1921) (same). Therefore, § 53a-4 precludes the majority from recognizing this new duty to protect a child from abuse.
IV
The legislature will be very much surprised to discover that we have in place, under § 53a-59 (a) (3), a law that provides that the failure to act is punishable criminal conduct. Although the legislature recently has grappled with the issue of imposing an affirmative obligation on the part of a parent and an unrelated adult to protect children from abuse; see Substitute House Bin No. 5283 (1998) (H.B. No. 5283), entitled “An Act Concerning Facilitation of Abuse of a Child”;10 it did not enact the proposed legislation. Nevertheless, the majority of this court, without any understanding of the implications of its decision today and without the aid of expert advice that is available to the legislature through the public hearing process, impetuously and presumptuously crafts a crime of assault that was never *247intended by the legislature. Clearly, if the legislature agreed with the majority that, pursuant to § 53a-59 (a) (3), parents as well as unrelated adults had an affirmative legal obligation to protect children from abuse, it never would have had a need to consider H.B. No. 5283, a bill that explicitly criminalizes the conduct with which the defendant was charged in the present case.11
The representatives of several state agencies and several non-profit groups created to support victims of *248abuse spoke out against H.B. No. 5283 at the public hearing before the legislature’s select committee on children. The remarks of these speakers set forth several significant reasons why this court should not undertake the legislative function and declare by judicial fiat that, “as a matter of policy under the circumstances of this case,” the defendant in this case had an affirmative legal obligation under § 53a-59 (a) (3) to protect the child from abuse.12
First, those who testified before the committee expressed unanimous concern that holding persons ha-ble for not protecting children from abuse actually would cause more harm than it would prevent. They testified that if the legislature wants to accomplish its goal of preventing children from being injured as a result of violence, it must first consider ways to improve the delivery of services to at risk families under the • state’s present child welfare system. For example, Diane Edell, program director of the Aetna Foundation *249Children Center at Saint Francis Hospital and Medical Center, testified that “[t]his law . . . will [not] do anything to protect children. There are other things . . . prevention programs, specialized mental health programs, helping mothers to leave abusive relationships that will help us help our children better.” Conn. Joint Standing Committee Hearings, Select Committee on Children, Pt. 1, 1998 Sess., p. 56.
Furthermore, several speakers testified that, if the legislature imposed liability on persons who fail to protect a child from abuse, it would discourage persons who are in the best position to know whether a child has been abused from informing the appropriate authorities after the abuse occurs. See id., p. 64, remarks of Frederick Berrien, medical director of the Children’s Advocacy Center; id., p. 78, remarks of Raphael Podolsky, an attorney for the Legal Assistance Resource Center of Connecticut, Inc. “If we want to help these children we need to find ways to make these parents stronger, not create laws that will result in fewer parents coming forward with their suspicions.” Id., p. 56, remarks of Edell, program director of the Aetna Foundation Children Center at Saint Francis Hospital and Medical Center. Finally, according to chief public defender Gerard A. Smyth, H.B. No. 5283 would “discourage people from acting as ‘caretakers’ ” of children, and, consequently, would affect the level of care received by children in this state. Id., p. 3 of Smyth’s prepared statement.
Second, nearly every speaker at the public hearing before the select committee on children testified that the legislature did not need to enact H.B. No. 5283 because “the situation that [it] is intended to address is already covered by” § 53-21, the risk of injury to a child statute. Id. According to Smyth, Podolsky, Jessica Stevens, director of the state chapter of the National Organization for Women, Linda Pearce Prestley, child advocate for the state of Connecticut, Gail Burns Smith, *250the executive director of Connecticut Sexual Assault Crisis Services, Inc., and Kristine D. Ragaglia, commissioner of the department of children and families, § 53-21 can and should be used to prosecute parents and others who fail to protect children from abuse. See id., p. 3 of Smyth’s prepared statement, pp. 72, 51, 9, 42, and p. 2 of Ragaglia’s prepared statement.
Third, the speakers at the public hearing before the select committee on children agreed that, even if the committee approved H.B. No. 5283, the bill would have to be made more specific in order to set forth the effort that must be extended to satisfy the duty to protect children from abuse. According to Smyth, for example, it was unclear whether parents, guardians and caretakers could satisfy the duty established in H.B. No. 5283, to act to protect such child from physical abuse, by reporting a risk of abuse to the department of children and families; or whether such persons would be required “[t]o take more active measures, such as concealing a child from a custodial parent if necessary . . . [o]r . . . withholding a child from a parent suspected of abuse.” Id., p. 1 of Smyth’s prepared statement.
Clearly, all of these delineated issues are best left for the legislature’s consideration, not ours. See Mahon v. Heim, 165 Conn. 251, 257, 332 A.2d 69 (1973) (“the adoption of . . . [a] specific exception [to the standard of care applicable to the conduct of minors, holding them to the adult standard of care when they engage in activities which are potentially highly hazardous] is . . . one peculiarly appropriate for further legislative consideration and action rather than for implementation by judicial fiat”).
V
Finally, in crafting this new common-law crime, the majority acknowledges constitutional problems in attempting to apply it in this case. For example, the *251majority has created an ex post facto law in its classic sense. State v. Ross, 230 Conn. 183, 281-82, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995) (“[t]he prohibition of ex post facto laws forbids the enactment of any law which imposes a punishment for an act which was not punishable at the time it was committed” [internal quotation marks omitted]). Moreover, even if the new law is not ex post facto, it cannot be applied to the defendant in the present case because a fundamental requisite of due process is that a person must be put on notice, before the alleged commission of a crime, that such nonfeasance is criminal. United States v. Lanier, 520 U.S. 259, 266, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997) (“due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope”); Grayned v. Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (statute must “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited”); State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986) (“[w]hen a[n] . . . unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime” [internal quotation marks omitted]). Furthermore, there is at least a question as to whether the defendant’s convictions for assault and risk of injury violate the constitutional prohibition against double jeopardy. J. Bruckmann, G. Nash & J. Katz, Connecticut Criminal Caselaw Handbook: A Practitioner’s Guide (1989) p. 151 (where multiple charges are considered same, judgment of conviction may not be entered on both). These constitutional claims, however, will be raised before the Appellate Court. See *252State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); see also State v. Indrisano, 228 Conn. 795, 800, 640 A.2d 986 (1994).
I would affirm the judgment of the Appellate Court.
Accordingly, I dissent.
“The defendant was charged with twenty-five counts of assault in the first degree. He was found not guilty of the remaining nineteen counts, all of which charged him with having either personally inflicted the victim’s injuries, or having aided and abetted another in inflicting those injuries.” State v. Miranda, 41 Conn. App. 333, 334 n.1, 675 A.2d 925 (1996).
See footnote 3 of the majority opinion for the text of § 53-21.
The Appellate Court refused to review the claim that there was insufficient evidence to support a conviction under § 53-21 because it was “inadequately briefed.” State v. Miranda, supra, 41 Conn. App. 338. This court refused to grant certification to appeal that issue. See State v. Miranda, 237 Conn. 932, 677 A.2d 1372 (1996). I agree with the majority that, in the interests of justice, on remand all the claims of insufficiency of evidence and any constitutional claims, including due process and double jeopardy, may be raised by the defendant’s appellate counsel.
See footnote 11 of this dissent.
General Statutes (Rev. to 1968) § 54-117 provides: “In case of conviction for any high crime or misdemeanor at common law, or of assault with intent to Mil, the offender may be imprisoned not more than fifteen years or be fined not more than five hundred dollars or both, and, in case of conviction for any other offense at common law, the offender may be imprisoned not more than one year or be fined not more than three hundred dollars or both.”
The majority claims in footnote 13 of its opinion that it is not creating a substantive offense, but merely interpreting § 53a-59 (a) (3). Incredibly, in the same footnote, the majority concedes that it is recognizing “a common-law duty to protect a child from abuse . . . .” Indeed, Justice Palmer, in Ms concurring opinion, concedes that “the legal duty that [the majority recognizes] today has never before been expressly recognized in tMs state . . . .” By imposing tMs common-law duty, the majority crafts anew crime.
The majority posits that “[i]f the dissent were correct, even a parent with an undisputed duty to protect a child from abuse could not be held liable under § 53a-59 (a) (3).” That is absolutely correct — even a parent could not be held liable under § 53a-59 (a) (3) for failing to protect Ms or her own cMld. See part IV of this dissent (legislative Mstory fails to support claim that failure to act on part of parent is conduct proscribed under § 53a-59 [a] [3]); J. BrucMnann, G. Nash & J. Katz, Connecticut Criminal Caselaw Handbook: A Practitioner’s Guide (1989) p. 494 (accused may be charged only with those crimes that are cogMzable under statutory law); see State v. Beccia, 199 Conn. 1, 5, 555 A.2d 683 (1986) (same). The parent, as well as the defendant in tMs case, however, could be found criminally liable under § 53-21 of causing ipjury or risk of injury to, or impairing the morals of cMldren, and the defendant was in fact convicted of that crime. See part I of this dissent.
Even if the majority is correct that it is merely interpreting § 53a-59 (a) (3) in accordance with our common law, its reasomng is flawed. The majority is unable to point to any common law in tMs state that would provide for criminal liability under § 53a-59 (a) (3) or any other assault statute for the failure to protect a child from abuse. See part TV of tMs dissent. The majority looks for support in 1 W. LaFave & A. Scott, supra, § 3.3, concerning the “omission to act,” and ignores the authors’ predicate in § 3.3 (a): “For criminal liability to be based upon the failure to act it must first be found that there is a duty to act — a legal duty and not simply a moral duty.” Id., p. 283. In fact, § 3.3 is peppered with references to cases in other jurisdictions that have rejected expanding legal duty to conform to moral duty because there was no statutory authority imposing a duty to act. “Generally one has no legal duty to aid another person in peril, even when that aid can be rendered without danger or inconvemence to himself.” Id., p. 284; see, e.g.,
*243State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981) (defendant was under no legal duty to warn daughter-in-law that defendant’s son was planning to kill her, no matter how morally reprehensible failure to do so was).
Furthermore, the eases from other jurisdictions that the majority cites are not germane. For example, two of the jurisdictions cited by the majority as imposing an affirmative obligation on parents to protect their children from abuse do so pursuant to statutory authority. In State v. Williquette, supra, 129 Wis. 2d 242 and n.1, the Wisconsin Supreme Court held that a mother w~ho took no action to stop the known abuse of her children by their father could be held criminally liable under a statute in effect at the time, entitled “Abuse of children,” which provided: “Whoever . . . subjects a child to cruel maltreatment ... is guilty of a Class E felony.” (Emphasis added.) Wis. Stat. § 940.201. That statute was subsequently repealed and replaced by the current statute, Wis. Stat. §948.03 (1995). Moreover, in Smith v. State, 408 N.E.2d 614, 619 (Ind. App. 1980), the Indiana Court, of Appeals held that a mother who knowingly left her child with a person who repeatedly hit the child could be held criminally liable under the Indiana statute entitled “Neglect of a dependent,” which provided in relevant part: “(a) A person having the care, custody, or control of a dependent who . . . knowingly .... (1) Places the dependent in a situation that may endanger his life or health . . . commits neglect of a dependent . . . .” Ind. Code § 35-46-1-4 (Sup. 1979). In State v. Walden, 306 N.C. 466, 473-76, 293 S.E.2d 780 (1982), the only case the majority cites in which a defendant was found guilty of assault for failing to prevent abuse in the absenfce of statutory imposition of a duty to act, the North Carolina Supreme Court’s holding was based on a theory of accessory liability, not a common-law duty to act under an assault statute. With respect to accessory liability, the trial court in the present case specifically found the defendant not guilty. See footnote 1 of this dissent.
Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946).
“Indeed, even prior to Pinkerton, [this court] had employed a rule of vicarious criminal liability under which a coconspirator could be held liable for a murder if that crime was the natural and probable consequence of a common plan and was committed while acting in pursuance of, or in furtherance of, the common design. . . . State v. Cots, 126 Conn. 48, 59, 9 A.2d 138 (1939).” (Internal quotation marks omitted.) State v. Diaz, 237 Conn. 518, 529, 679 A.2d 902 (1996).
In the one case the majority does refer to, State v. Tomassi, 137 Conn. 113, 119, 75 A.2d 67 (1950), this court stated in dicta that an act or omission that causes death may constitute murder or manslaughter. In Tomassi, the court’s affirmance of the defendant’s conviction was based on the fact that the defendant wilfully shot and wounded the victim, not on an omission of care by the defendant. Id.
The select committee on children issued a favorable report on H.B. No. 5283 to the judiciary committee. The judiciary committee took no action on H.B. No. 5283 and, as of this date, the bill remains dormant.
Substitute House Bill No. 5283, § 1 (a) provides: “A person is guilty of facilitation of abuse of a child when, as a parent, guardian or caretaker of a child, such person fails to act to protect the child from death or serious physical injury by another person under circumstances where there is a continuing course of abusive conduct and the parent, guardian or caretaker reasonably should have known of such conduct.”
At oral argument in the present case, the state argued that the legislature’s decision not to consider the select committee on children’s proposed amendment to House Bill No. 6967 in 1997, entitled “An Act Concerning Reporting of Child Abuse,” does not prove that the legislature questions whether § 53a-59 (a) (3) imposes a duty on parents and unrelated adults to protect children from abuse. According to the state, “[i]t is at least plausible that our legislature rejected [the facilitator abuse amendment] because [1] it was aware of the common-law rule that an adult [who] voluntarily assumes care and responsibility for a helpless child he or she lives [with] has a duty to protect that child from abuse, or [2] it’s own express public policy of protecting children from abuse and neglect and making the homes sale for children, or [3] the fact that [that] certified question is presently pending before this court.”
The detailed record of the select committee on children’s public hearing with respect to child abuse — including H.B. No. 5283 — disproves each of the state’s contentions at oral argument. First, if the legislature agreed that § 53a-59 (a) (3) imposed on persons a duty to protect children from abuse, it would not have considered imposing on parents and certain unrelated adults the same duty to act pursuant to H.B. No. 5283. Second, the legislators who spoke at the public hearing made it clear that, despite the state’s express public policy of protecting children from abuse and neglect and making homes safe for children, the legislature needed to create a new statutory duty for parents and certain unrelated adults to protect children from abuse. See Conn. Joint Standing Committee Hearings, Select Committee on Children, Pt. 1, 1998 Sess., p. 35, remarks of Representative Nancy E. Kerensky (legislature should enact H.B. No. 5283 in order to make “a statement about what parental obligations are in view of this legislature,from this point on" [emphasis added]); id., p. 46, remarks of Representative Paul M. Tymniak (“[W]e still have children turning up dead. I think we have to go someplace different in trying to address it.”); id., p. 33, remarks of Representative Mary M. Mushinsky (“the present law doesn’t seem to be working to the members of this committee”). Third, this court may “presume that the legislature is aware of [die Appellate Court’s] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpreta*248tion.” Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987).
Paul Robinson, in his article entitled “Criminal Liability for Omissions: A Brief Summary and Critique of the Law in the United States,” 29 N.Y.L. Sch. L. Rev. 101, 104 (1984), also points out several reasons why the issue of imposing affirmative legal obligations on persons to protect children from abuse is best left for the legislature. “There is a general, albeit declining, reluctance in the United States to impose affirmative duties and to punish nonperformance of those duties. Various explanations for the reluctance to criminalize inactivity have been offered. First, there is difficulty in defining with sufficient clarity the effort that must be expended in order to satisfy the duty. Second, the inherent ambiguity in defining the scope of a duty leads to speculation about guilt and thereby poses a threat to society more serious than the harm prevented by requiring affirmative conduct. Third, because ‘prevailing attitudes draw sharp distinctions between overt action and passivity!, the] legislature cannot ignore the mores, nor should it implement them beyond necessary limits.’ Finally, a governmental demand to perform is significantly more intrusive than a command to refrain from harmful action and therefore must be justified by a significant overriding public interest and must be imposed in a way that minimizes the extent of intrusion.” Id.