(dissenting). The majority of the court has decided that the neglectful conduct of the defendant is to be proscribed by the criminal law. Such action by a legislature may well be commendable, but by a court condemnable. I dissent.
*264Even the prosecution acknowledges that whether the conduct of the defendant fits the legislative definition of a criminal act can only be answered with hesitancy and doubt. The state acknowledges that, with respect to Terri Williquette, the statute is ambiguous. Thus, at the very outset of the state's analysis, there is the express admission that it is not clear that Terri Williquette is within the ambit of the statute. The state acknowledges that "reasonably well-informed persons could disagree over whether the defendant's conduct constituted subjecting her children to cruel maltreatment under sec. 940.201, Stats."
The state then inconsistently goes on to argue— and its argument is accepted by the majority — that it really is clear that the statute not only prohibits conduct by which an actor directly and personally inflicted cruel maltreatment upon a child, but also proscribes all conduct by a person, not the inflicter of torture or maltreatment, which permits the prohibited conduct to take place if there is knowledge that the abusive conduct will take place.
What is clear is that the conduct of the father — he has been convicted — is indeed loathsome, disgusting, and, to use the language of the majority, " 'abhorrent to the sensitivities of the general public.'" (P. 249.) To apply that latter verbiage to Terri's conduct, however, is to equate very unlike acts.
This, however, is a criminal case, not an occasion for an emotional cathartic nor for this court's exercise óf righteous indignation. The question for a court is whether the legislature has made criminal the action with which Terri Williquette has been charged. The question is not whether a court, were it sitting as a legislature, would have proscribed the conduct. Most egre*265giously, although it points to no legislative intent contemporaneous with the passage of the law that would make Terri Williquette's conduct a felony, the majority finds that the statute means that conduct which occurred almost three years ago is now to be definitively declared criminal. In the absence of some indicia supporting that interpretation stemming from the time of the law's passage, the best that can be said of the law which the majority now promulgates, assuming it is otherwise appropriate, is that it is unconstitutional as ex post facto.
Putting aside for the nonce that the consideration that this court has acted as a legislature to impose sanctions after the fact, let us consider the logical and semantic underpinnings of the opinion supporting the position of the state.
Just the examination of the language of the statute dispels any argument supportive of the state's position:
" 940.201 Abuse of Children. Whoever tortures a child or subjects a child to cruel maltreatment, including, but not limited, to severe bruising, lacerations, fractured bones, burns, internal injuries or any injury constituting great bodily harm under s. 939.22 (14), is guilty of a class E Felony.
It is rather clear that a person of normal comprehension at first blush would have no problem in concluding that the actor whose conduct is to be sanctioned by the state is he or she who actually tortures a child or subjects the child to cruel maltreatment— the person who inflicts the harm.
The majority, following the convoluted reasoning of the state, relies upon the language, "subjects a child," *266as the verbal touchstone that exposes a non-first-person actor to liability under the statute. This rationalization was, I believe, effectivély dispelled as faulty by the court of appeals when it stated:
"The state reads too much into the use of the verb 'subjects' in sec. 940.201. Interpreting the statute as the state urges, a person would not be liable for permitting torture to a child because 'subjects' is not used in conjunction with the prohibition against torture. No logic justifies differentiating between the bases of liability for torture and cruel maltreatment." 125 Wis. 2d 86, 88, 370 NW.2d 282 (Ct. App. 1985).
The state would justify its illogical interpretation on the premise that torture and cruel maltreatment are at least partially overlapping synonyms and thus "torture" is a superfluous word. That course of argument violates one of the fundamental canons of statutory interpretation — that all words are to be given equal weight. The state's argument is, of course, an understandable, if not justifiable, one for the prosecution to make, but the fact that the state finds it necessary to make the argument exemplifies the statute's lack of clarity when applied to the instant situation and the desperate scrambling of the state to find a legislative intent to define as a felony Terri Williquette's conduct, when it is clear the legislature had no such conduct in mind.
That it did not have such conduct in mind is shown by the legislative history. The amendment to the statute in 1968 was apparently induced by the instructions of the speaker of the assembly, George Molinaro. The original draft bill, 1969 Bill 544A, provided:
*267"Whoever intentionally tortures, torments or subjects to phyoionl abuoo-er cruel maltreatment any child may be fined. ..." (The struck-through words have been subsequently deleted although they appeared in the original draft.)
This draft makes it rather clear that the language "subjects to" was parallel in legislative intent to "tortures," i.e., it spoke to the conduct of the principal actor.
The real intent of the original bill revealed by the drafting file was to eliminate "intent" in the sense of "intent to torture" or "intent to maltreat" as an element of the crime. The bill jacket shows that "intentionally" was stricken from the 1969 draft to protect "youngsters who are helpless victims of a father who 'didn't mean to hit him so hard,' or the mother who feels it is her 'duty to beat the children' to instill discipline."1
Thus, if one is to accept the position of the state, and I for one would not, that the legislation is ambiguous, the ambiguity is resolved by the clear demonstration that what the drafters intended was that the principal actor be criminally liable even though there was no subjective intent to torture or maltreat. The record is devoid of any material that implies a legislative intent that any person was to be held liable as a principal in a felony action for allowing a child to remain, or to be placed, in a situation where he or she might be abused.
To conclude that such was the intent of the legislature is to attribute to it — and to its staff — -a complete lack of drafting expertise and the ordinary usages of *268the English language. Other jurisdictions have stated specifically in their child abuse statutes that a person not the principal actor or abuser could be liable as the principal when a child was knowingly placed in a circumstance where abuse could occur.2 I believe that were that the intent of the Wisconsin legislature, the statutory language demonstrates it did not have the ability to make that intent clear. I, however, do not consider that implied conclusion an appropriate one for this court to reach. We denigrate the legislature or, alternatively, we, as a court, are invading an area of the law — the proscription of criminal conduct — which is wholly statutory and is beyond the reach of a court's common law or inherent powers. Clearly, the majority's strained interpretation is an invasion of the legislative prerogative.
*269The majority correctly asserts the criminal conduct can be predicated upon the failure to act when action is required by law. The problem is that nothing in the statutes remotely suggests that a parent has the legislatively prescribed legal duty to act in the instant circumstances or that the omission of the alleged duty will result in criminal sanctions. Certainly, I agree with the majority who, after reciting the catalog of horrors perpetrated upon these children, asserts, citing Cole v. Sears, Roebuck & Co., 47 Wis. 2d 629, 634, 177 N.W. 2d 866 (1970):
"An omission to do this [care for and protect children] is a public wrong which the state, under its police powers, may prevent." (P. 255.)
The problem with this position is that it begs the question. Of course, the state has the police powers which may be exercised for that very purpose. The omission can be categorized as a public wrong which the legislature may prevent. But the police power is a power of the legislature. It is not an independent power conferred upon courts. Courts may validate a legislature's conduct by recognizing the legislature's police power, but courts cannot supply that exercise of power where there is no evidence that the legislature so intended to act.
We return to the fundamental defect in the position of the state. There is no evidence that the legislature intended to exercise its police power in the manner urged here. I reiterate, if it desired to do so, the appropriate statutory language was not beyond the capabilities of the legislature.
The Maryland cases upon which the majority relies are inapposite, for the statutes there considered re-*270fleet a different and expressly stated legislative intent. In State v. Fabritz, 276 Md. 416, 348 A. 2d 275 (1975), cert. denied 425 U.S. 942 (1976), and Pope v. State, 284 Md. 309, 396 A. 2d 1054 (1979), the Maryland court did find that their statute permitted prosecution of a parent in particular circumstances for a knowing failure to protect a child from abuse.
The Maryland statute, Md. Code Art. 27, sec. 35A, however, differed significantly from the Wisconsin one. The language of that statute provided:
" 'Any parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child under the age of eighteen years who causes abuse to such minor child shall be guilty of a felony. . . .'" Pope, supra at 321.
Abuse was defined as including " 'injuries sustained by a child as a result of cruel or inhumane treatment.' " Pope, supra at 318.
In State v. Fabritz, supra, the Maryland court upheld the conviction of the mother because she failed to obtain medical treatment for her severely beaten child. There was indeed no evidence that Fabritz (the mother) had struck the blows nor evidence that Fabritz had any inkling that the person in whose custody she had left the child would maltreat her. There was evidence, however, that, knowing of the injuries, the mother had failed to obtain prompt medical attention and that such neglect "caused" abuse which was further physical injury. It is apparent that the Fabritz rationale is not transferable to the present case, for it depends upon the precise and disparate wording of the Maryland statute. While this writer has no quarrel with the state's argument that the conduct in the instant case *271may be just as "egregious" as Fabritz's failure to obtain medical treatment, that fact is irrelevant if the statute in Wisconsin is inapplicable to the present facts. We are not, at this juncture concerned with the relative degree of misconduct, but only with the certitude with which the statute denominates the conduct as criminal.
The Fabritz holding is further explained in Pope, supra at 319:
"We found that the failure of the mother to seek or obtain any medical assistance for her child, although the need therefor was obviously compelling and urgent, caused the child to sustain bodily injury additional to and beyond that inflicted upon the child by reason of the original assault by another. The act of omission by the mother 'constituted a cause of the further progression and worsening of the injuries which led to [the child's] death; and that in these circumstances [the mother's] treatment of [the child] was "cruel and inhumane" within the meaning of the statute. . . .' Id. at 425-426."
Pope v. State also arose out of the failure to obtain medical help for a battered baby. The court of appeals of Maryland affirmed the dismissal of the charge of child abuse, not because the complaint was substantively deficient, but because the defendant was not within the class of persons subject to prosecution. The Pope court pointed out that:
"In Fabritz we went no farther than to determine that the Legislature intended that the 'cause' of an injury may include an act of omission so as to constitute cruel or inhumane treatment, in that case the failure of the mother to seek or obtain medical assistance for her child who had been abused *272by another. Fabritz did not go to the class of persons to whom the statutory proscription applies, as the accused there was a 'parent,' the victim's mother, expressly designated in the statute." Pope, supra at 320.
Pope involved a person who was a bystander at the time of the child's fatal and orgiastic pummeling by the mother and who failed to seek medical assistance for the child. The child abuse case against her was dismissed because she was not a person specifically named as the target of the child abuse statute's proscription, i.e., she was not a " 'parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child under the age of eighteen years.'" Pope, supra at 321.
It is clear, however, that were Pope within the class targeted by the statute, her conduct was proscribed as child abuse, for the court found that Pope's inaction could constitute "a cause of the further progression and worsening of the injuries which led to [the child's] death." Pope, supra at 319.
In these Maryland cases, where the evidence showed that the failure to provide medical assistance resulted in a worsening condition, the neglect caused abuse as defined in the statute. The Maryland court's holding that the omission to supply treatment was abuse falls squarely within the statute applicable there. That rationale is simply not applicable in Wisconsin, where the obvious meaning of "tortures a child or subjects a child to cruel maltreatment" requires an overt act and not a mere failure to act, as in the present circumstances.
*273Although the majority cites the Maryland cases as precedent, what should be the lesson of those cases is ignored. The Maryland court carefully avoided construing the statute to include persons who were not clearly the target for the legislature's concern. Although by less stretching of the imagination than used by the majority in the present case, it would be possible to conclude that Pope might have been a person of the class targeted by the Maryland legislature for the proscriptions of the child abuse law.
The majority concludes that the reach of the statute is precise — not vague — because we have, in State v. Killory, 73 Wis. 2d 400, 407, 243 N.W. 2d 475 (1976), defined "cruel maltreatment" as acts that are "abhorrent to the sensitivities of the general public." Granting that the particular affirmative acts of the father recited by the majority are "abhorrent to the sensitivities of the general public," the mother's failure to remove the children from their father's care does not easily fit that description. Particularly, I reach this conclusion when the state acknowledges that "reasonably well-informed persons could disagree over whether the defendant's conduct constituted subjecting her children to cruel maltreatment under sec. 940.201, Stats."
Even if we are to assume, as does the majority decision, that the statute clearly means to a lay person what it means to this court after Killory, 73 Wis. 2d at 407 — that the dominant general purpose of sec. 940.201 is to protect children from conduct abhorrent to the sensitivities of the general public — it is far from clear that this is a legislative declaration that a mother who leaves her children with the other parent — even if she knows of his brutal propensities — is to be considered a felon and guilty of the same felony of which he *274is guilty. There are numerous adjectives that could be applied to the mother's conduct, all of which would connote a high degree of opprobrium, but the question is not whether the court castigates the mother for her conduct but whether the statute gave notice that her conduct was proscribed by the criminal law.
In Killory, we stated that a statute was constitutionally vague "[i]f the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability.. . P. 405.
This statute is not sufficiently definite to give reasonable notice to a parent that the failure to act falls within the prohibited conduct of the statute. Clearly, the state and the majority of this court arrive at their conclusion only by straining reason to its outer limits. The majority opinion speaks for itself in demonstrating that the court has "guessed" at the meaning of the statute. It is apparent that none of the participants in this unfortunate episode, nor the prosecution and the court, could have looked at the statute and have said with any degree of confidence that Terri Williquette's conduct would constitute the felonious act of torturing a child or submitting it to cruel maltreatment. The only thing clearly revealed by a perusal of the statute is vagueness in its application to the present facts.
We have correctly, I believe, concluded that there need be no intent to torture, no intent to maltreat. (See, State v. Danforth, 129 Wis. 2d 187, 385 N.W.2d 125 (1986).) Hence, the statute comes perilously close to a strict liability statute. I have no quarrel with such an application of the law provided the child abuse statute is applied only in those cases where the legislature has given clear notice of its applicability. To insist on less sanctions the denied of due process.
*275One real problem revealed here is that the court does not have the investigative facilities to decide what ought to be done in a broad spectrum of cases involving child abuse. We do not have the legislature's fact-finding process to justify our determination of what the criminal law should be. We are assuming, without being sure, that the legislature, had it confronted the problem posed here, would have concluded, as the majority guesses it would have concluded, that the conduct of Terri Williquette was just as culpable as that of her husband, who was overtly and cruelly sodomizing and torturing the children. While that assumption could be correct, it is not an assumption that a court should make. We do not know how the legislature would have treated the present facts. Nor do we have the authority as a court to reach that conclusion. We are not the branch of the government that has been designated by the constitution to determine what conduct is criminal. Yet, in this case, we come forward withour own definition of criminality. While to do so may give the proponents of this court-made legislation a self-satisfied glow of rectitude, in reality we are by this opinion usurping the legislative prerogative to make the criminal law. While we have responsibilities in the formulation of the common law, the wise sages of our jurisprudence have long recognized that, unless conduct is clearly and unequivocally declared to be criminal by the legislature, a court should restrain itself — even from the impulse to do what it believes to be morally justified.
Pope, supra, has been quoted by the majority for an inapplicable proposition. I suggest that it would more appropriately be quoted for its admonition to judicial restraint:
*276"[T]he culpability for her conduct during the abuse of the child must be determined strictly within the law or else the basic tenets of our system of justice are prostituted. There is an understandable feeling of outrage at what occurred. . . . But it is the law, not indignation, which governs." Pope, at 333.
I dissent.
I am authorized to state that JUSTICE ABRAHAMSON joins in this dissent.Bill file letter dated April 20, 1968, from Kenosha News to Assemblyman George Molinaro.
See, e.g., Colorado Statutes, sec. 18-6-401(1) ("A person commits child abuse if he causes an injury to a child's life or health or permits a child to be unreasonably placed in a situation which poses a threat of injury to the child's life or health."), Florida Statutes (1985), sec. 827.04(1) ("Whoever, willfully or by culpable negligence, deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment, or who, knowingly or by culpable negligence, permits physical or mental injury to the child, and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to such child, shall be guilty of a felony of the third degree . . .”); Nevada Statutes (1983-84), sec. 200.508 ("1. Any adult person who willfully causes or permits a child who is less than 18 years of age to suffer unjustifiable physical pain or mental suffering as a result of abuse or neglect or who willfully causes or permits a child to be placed in a situation where the child may suffer physical pain or mental suffering as the result of abuse or neglect is guilty of. . .; 2.. . .; 3. As used in this section, 'permit' means permission that a reasonable person would not grant and which amounts to a neglect of responsibility attending the care, custody and control of a minor child.")