dissenting.
With due respect, I cannot subscribe to the court’s opinion.
The simple issue before us is whether a young child who allegedly has suffered severe mental and emotional injuries as a result of being deserted and abandoned by a parent acting "maliciously, intentionally, and with cruel disregard of the consequences”— conduct which the legislature has declared to be a crime—may upon proper proof hold the parent responsible in damages for these severe mental and emotional injuries. Contrary to the majority opinion, I believe that these allegations, which plead a violation of ORS 163.535, state a claim on which a child so injured may go to trial.1
*724In reaching this conclusion, I differ with the majority’s treatment of its two crucial premises: (1) the source of civil liability for violation of criminal laws, and (2) the significance to be accorded to Oregon’s child protection laws.
Liability for damages from prohibited conduct. It should be noted at the outset that awarding civil damages for violations of prohibitory laws is not an uncommon or radical theory of recovery. The question when the victim of criminal or otherwise prohibited conduct may recover damages from the wrongdoer is increasingly important in many areas of law. In a number of recent cases the issue has occupied the United States Supreme Court and the federal courts, whose greater attention to statutory premises of liability probably reflects the fact that these courts are not empowered to formulate common law torts unrelated to the Constitution or laws bf the United States. See, e.g., Wheeldin v. Wheeler, 373 US 647 (1963) (majority and minority opinions). Thiis the Supreme Court has also referred to potential civil liability under state law as one factor in determining whether such liability arises implicitly from an act of Congress. Cort v. Ash, 422 US 66 (1975). Apart from these differences, however, federal and state courts face the same question when prohibitory legislation implies a civil liability toward those for whose protection the legislation is enacted and when it does not. The answer depends first on whether a legislative policy to allow or to deny a civil remedy can be discerned in the text or the legislative history of the statute. If neither can be discerned, then it depends on whether the plaintiff belongs to the class for whose special protection the *725statute was enacted and whether the civil remedy would contribute to or perhaps detract from achieving the object of the legislation. Cort v. Ash, supra, reaffirmed in Piper v. Chris-Craft Industries, Inc., 430 US 1, 37-41 (1977).
This court has had a number of recent occasions to undertake this analysis. In Davis v. Billy’s Con-Teena, Inc., 284 Or 351, 587 P2d 75 (1978), we based potential liability for damages caused by unlawfully selling alcohol to minors on a stated legislative purpose to protect the safety and health of other persons beyond the minors themselves. In Farris v. United States Fidelity, 284 Or 453, 587 P2d 1015 (1978), on the other hand, we found that the statutory penalties provided for violations of the insurance code precluded inferring a damage claim for emotional suffering or punitive damages for the violation in question. O’Toole v. Franklin, 279 Or 513, 569 P2d 561 (1977), recognized that a knowing violation of a provision of the Oregon State Bar act could give rise to a damage action by a member of the class for whose protection it was enacted. And only this week we found in a prohibition against discharging an employee for claiming workers’ compensation a public policy that supported a civil claim for damages by a worker so discharged. Brown v. Transcon Lines, 284 Or 597, 588 P2d 1087 (1978). The American Law Institute’s Restatement (Second) of Torts, Tentative Draft No. 23, 1977, lists a number of other illustrations in its discussion of proscriptive or prescriptive statutes as sources of civil liability.2 *726Sometimes a common law court will assimilate the statutory duty into an existing principle of liability, as for instance the negligence action in Davis v. Billy’s Con-Teena, supra, but that is not always so. See Restatement (Second) of Torts, Tentative Draft No. 23, 1977, §874A, Comment f.3
Of course, the question of civil recovery for breach of a statutory duty can be an issue only when the legislation itself is silent on the point. If the legislature either provides for a civil remedy or clearly indicates that it means other provisions for enforcement to be complete and exclusive, there is nothing for a court to decide. It would help to clarify not only private rights but also the particular public policy if the legislative assembly as a routine step in the drafting of penal legislation faced the question of its civil consequences, or alternatively, if it were to enact a general formula for determining these consequences when a statute is otherwise silent.
Unfortunately legislatures do neither, but nothing can be inferred from that fact, given the existing *727practice of recognizing such consequences when the nature of the protective statute appears to imply them. The majority overstates the case when it equates legislative silence with an "underlying assumption . . . that it was not intended that the statute create any civil obligation or afford civil protection against the injuries which it was designed to prevent.” Nor does it follow, when a court finds that the duty created or defined by the statute does imply a civil cause of action, that the court is engaged in pronouncing common law. The difference between a new common law theory of recovery in tort or otherwise and a civil claim based on a statute is obvious: The latter claim stands and falls with the statute from which it is implied, and it will disappear as soon as the amendment or repeal of the statute indicates a reconsideration of the previous public policy. Thus, while a court is often left at large to divine the implications of a statutory policy, it is equally an overstatement to say that the court simply makes its own judgment whether to "create a cause of action” deriving "solely” from the court’s own appraisal whether additional protection for the claimed interest is "necessary and desirable.”4
The relevance of criminal or regulatory laws to civil liability is more complex than merely being an element "taken into consideration by the court in deciding whether a common law action should be established,” as the majority puts it. Such laws express *728distinct kinds of policies. First, the most familiar criminal laws are redefinitions of common-law crimes against private persons or property. They have equally familiar civil analogues in common-law torts. Only "victimless crimes” and crimes deemed to endanger the public as a collectivity, such as bribery, counterfeiting, or tax evasion, are likely to lack a corresponding civil liability. Violations of game laws or environmental protection laws may be other examples. Second, regulatory laws specify standards of socially responsible conduct for the protection of persons endangered by the conduct. While the tort standard may go further, we have recognized the force of the criminal or regulatory standard in negligence cases even when it was set by agencies or local governments that presumably could not themselves create civil liability whether or not they had such an intent. See, e.g., Landolt v. The Flame, Inc., 261 Or 243, 492 P2d 785 (1972) (county building ordinance); Stachniewicz v. Mar-Cam Corp., 259 Or 583, 488 P2d 436 (1971) (liquor control commission regulation). Third, governmental sanctions, penal or otherwise, may be enacted to add governmental enforcement to the recognized obligations of a relationship existing apart from the legislation. In such a situation the "underlying assumption,” to use the majority’s phrase, is hardly that the penal sanction makes the civil obligation unnecessary. Rather, the statute shows that the obligation is considered of such importance that it deserves enforcement by public prosecution.
The child protection laws. It can hardly be questioned that a statute like 163.535, which makes it a crime intentionally to desert and abandon a child, is of the third kind. It and the related sections did not enact a novel prohibition against parental neglect for the convenience of the general public or the protection of taxpayers. They enacted a legislative definition and public enforcement of certain minimal obligations of an existing relationship. Jurisprudentially it might be said that parents have a duty not to abandon and *729desert their young children because ORS 163.535 makes it a crime to do so, but a legislator would surely think ORS 163.535 should make it a crime to abandon and desert a child because the parent’s existing duty— the duty to the child, not to the state—deserved governmental reenforcement. It is the parent’s duty thus recognized under Oregon law that plaintiffs invoke in these cases.
The majority does not really deny that ORS 163.535 constitutes such a legislative recognition and reenforcement of the parent’s private obligation to the child, not of some socially convenient behavior. Rather, the majority would deny a remedy for the intentional breach of this obligation on the ground that other public policies militate against such a remedy. Upon examination, the majority’s statutory citations refer to the single policy of maintaining and preserving the position of the child within a functioning family as long as this is possible. Without in any way questioning that this is indeed the state’s public policy, I do not agree that it supports the conclusion that the legislature meant to deny the child a remedy for injuries from a parent’s unlawful acts.
First, it must be kept in mind what conduct violates ORS 163.535. The statute makes it a felony to desert one’s child with intent to abandon it. Of course, we have no evidence of the actual facts in these cases, but the allegations are that defendants did desert and abandon their children "maliciously, intentionally, and with cruel disregard of the consequences.” If that is true, the parents have in fact ended the family unit, so that solicitude about not impairing it by litigation may sacrifice the children’s legal rights to a pious hope. Contrary to the majority, I do not believe it is this court’s own judgment of the possible effects of litigation on family relations that matters (a question on which counsel was unable to enlighten us and that, if taken seriously, is hardly within judicial notice) but rather what view of these effects may be attributed to the legislature. More important for interpreting the *730legislative policy, however, the statute means that a district attorney or grand jury on the alleged facts could prosecute the parents for a felony. It is incongruous to hold that the legislature provided for a felony prosecution of parents who egregiously violate a duty toward their children, but that it meant to exclude civil actions on behalf of the maliciously abandoned children for fear of impairing the family unit. To hold that the plaintiffs cannot invoke this duty, one must assume a legislative policy that a deserted and abandoned child (or a guardian on its behalf) should ask a district attorney to seek the criminal punishment of the parent for this desertion, but that the child should have no claim that would be of any benefit to itself. That seems too unlikely a policy to attribute to the legislature without some showing that it was intended.
Moreover, the majority’s premise proves too much. For purposes of the issue of law before us on these demurrers, it can be assumed that the plaintiffs have suffered actual, demonstrable injuries of a kind for which the law provides money damages against defendants other than parents, that defendants have assets from which these real injuries of the plaintiffs could be compensated, and that defendants caused these injuries by intentionally breaching a specific duty toward plaintiffs that is recognized in Oregon law. Perhaps the explanation for the majority’s unwillingness to follow these assumptions to their conclusion is that the injuries alleged are psychological and emotional rather than physical. But if a civil remedy is denied on the majority’s premise that it is precluded by a state policy of preserving family unity, that premise would apply equally to bar recovery of damages by a child crippled by physical abuse.5 And despite the *731majority’s reference to statutory proceedings for the termination of parental rights, it is at least questionable that a termination proceeding would create rights to a financial recovery to compensate for such very real and costly harm caused before the termination proceeding.
Although the majority does not say so, its premise is the equivalent of the doctrine of intrafamily tort immunity which Oregon has abandoned at least with respect to intentional torts, see Chaffin v. Chaffin, 239 Or 374, 397 P2d 771 (1964); Cowgill, Adm’r v. Boock, Adm’r, 189 Or 282, 218 P2d 445, 19 ALR2d 405 (1950), though attributed here to a supposed legislative policy subordinating legal claims of children against their parents to reliance on "protective social services.” I perceive no such prescribed reliance on social services when parents who have deliberately mistreated their children in a manner made criminal by statute have the assets to be responsible for the harm caused thereby. In my view, plaintiffs have alleged at least one triable cause of action arising from an alleged intentional violation of duties recognized in ORS 163.535. Therefore, the demurrers should have been overruled.
Lent, J., joins in this dissent.ORS 163.535:
(1) A person commits the crime of abandonment of a child if, being a parent, lawful guardian or other person lawfully charged with the *724care or custody of a child under 15 years of age, he deserts the child in any place with intent to abandon it.
(2) Abandonment of a child is a Class C felony.
Since the complaint alleges at least one cause of action, the validity of the other theories of recovery contained in the complaint need not be considered in overruling the demurrer. See, e.g., Chaney v. Fields Chevrolet Co., 264 Or 21, 27-28, 503 P2d 1239, 59 ALR3d 1199 (1972).
Restatement (Second) of Torts §874A (Tentative Draft No. 23,1977):
3. A statute makes it a crime to have sexual intercourse with a previously chaste female under the age of 17, even though she factually consents. The court may hold that the tort action of battery will lie, regardless of the consent.
4. A federal act makes it a crime to intercept and divulge a telephone conversation. The court may "assimilate” this conduct to the torts of defamation and invasion of the right of privacy and grant damages.
*7266. A statute makes it a crime to utter insulting and abusive language to another publicly. The court may hold that a civil action will lie, amounting to the intentional infliction of emotional distress.
8. A statute makes it a crime to seduce a woman under promises of marriage. The court may hold that this conduct gives rise to a tort action for damages.
As early as 1934, and until 1965, the original Restatement of Torts, §286, stated:
The violation of a legislative enactment by doing a prohibited act, or by failing to do a required act, makes the actor liable for an invasion of an interest of another if:
(a) the intent of the enactment is exclusively or in part to protect an interest of the other as an individual; and,
(b) the interest invaded is one which the enactment is intended to protect; and,
(c) where the enactment is intended to protect an interest from a particular hazard, the invasion of the interests results from that hazard; and,
(d) the violation is a legal cause of the invasion, and the other has not so conducted himself as to disable himself from maintaining an action.
Long ago, Chief Justice Harlan F. Stone deplored the reluctance of "modem courts [to] resort to standards of conduct set up by legislation” as sources of liability or other consequences beyond those provided by the legislation.
The statute was looked upon as in the law but not of it, a formal rule to be obeyed, it is true, since it is the command of the sovereign, but to be obeyed grudgingly, by construing it narrowly and treating it as though it did not exist for any purpose other than that embraced within the strict construction of its words. It is difficult to appraise the consequences of the perpetuation of incongruities and injustices in the law by this habit of narrow construction of statutes and by the failure to recognize that, as recognitions of social policy, they are as significant and rightly as much a part of the law, as the rules declared by judges.
Stone, The Common Law in the United States, 50 Harv L Rev 4 (1936).
Defendant presented a "parade of horribles” such as actions for psychological or emotional injury from receiving fewer Christmas gifts than a sibling and the like. I note this only to point out that the argument misses the point. The nature of the breach of duty in this case is fixed by *731ORS 163.535 and would not give rise to an expandable common law precedent. As far as the present issue is concerned, the case would be the same if a child had been deliberately abandoned in an unheated mountain cabin and lost a limb to frostbite or suffered other permanent injuries from lack of food or pneumonia.
Nothing is said here about claims based on other statutes invoked by plaintiffs that deal with general but unintentional neglect or nonsupport of children. The provision of alternative social services relied on by the majority may militate against implying a civil remedy for these less final and culpable violations of parental duty.