STAND. COM. REP. 3121

Honolulu, Hawaii

, 2004

RE: H.B. No. 2254

S.D. 1

 

 

Honorable Robert Bunda

President of the Senate

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Committee on Judiciary and Hawaiian Affairs, to which was referred H.B. No. 2254 entitled:

"A BILL FOR AN ACT RELATING TO CHAPTER 707, HAWAII REVISED STATUTES,"

begs leave to report as follows:

The purpose of this measure is to clarify that the definition of "sexual penetration" includes the acts of cunnilingus and anilingus whether or not actual penetration has occurred.

Prior to holding a public hearing on this measure, a proposed S.D. 1 was prepared and made available for public review. The proposed change to this measure was to include greater consistency between the elements constituting the criminal offenses of sexual assault in the second degree and sexual assault in the third degree, when the offense occurs in a correctional facility by an employee against a committed person.

Testimony in support of this measure was submitted by the Department of Public Safety, Department of the Prosecuting Attorney for the City and County of Honolulu, Honolulu Police Department, Community Alliance on Prisons, the Sex Abuse Treatment Center, and one individual.

Your Committee finds that clarification of the definition for "sexual penetration" is necessary because of a recent Hawaii Supreme Court decision. Specifically, the Court held that the definition of "sexual penetration" required proof of actual penetration for the acts of cunnilingus or anilingus. A previous decision held that the act of cunnilingus is an act of "sexual penetration" under the statutory definition of "sexual penetration," irrespective of whether there was proof of actual penetration.

Your Committee finds that it is usually difficult for many sexual assault victims to know whether penetration, however slight, occurred during the act of cunnilingus. Further, the failure to provide such a clarification would reduce many sexual assaults involving acts of cunnilingus or anilingus on children under the age of consent, from a class A felony to a class C felony. Your Committees believe that the definition of sexual penetration should include the acts of cunnilingus or anilingus, regardless of whether there was actual penetration.

Your Committee also notes that Part II of this measure corrects an error in the Penal Code. Specifically, an amendment was made to the Penal Code in 2002. The purpose of the 2002 amendment was to include employees of private companies in correctional facilities in sexual offense statutes that prohibit sexual contact and penetration with imprisoned persons or persons confined in a detention facility.

However, the language provided in that previous amendment inadvertently excluded state-employed law enforcement officers and only prohibited private company employees from committing these acts. This measure corrects the mistake by including state-employed law enforcement officers and also clarifies language relating to what does and does not constitute an offense.

Your Committee adopted the amendments in the proposed S.D. 1, and has made technical, nonsubstantive amendments to the proposed version of this measure.

As affirmed by the record of votes of the members of your Committee on Judiciary and Hawaiian Affairs that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 2254, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 2254, S.D. 1, and be placed on the calendar for Third Reading.

 

Respectfully submitted on behalf of the members of the Committee on Judiciary and Hawaiian Affairs,

____________________________

COLLEEN HANABUSA, Chair