STAND. COM. REP. 3094

Honolulu, Hawaii

, 2004

RE: H.B. No. 2789

H.D. 1

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. 2789, H.D. 1, entitled:

"A BILL FOR AN ACT RELATING TO SEXUAL ASSAULT,"

begs leave to report as follows:

The purpose of this measure is to define continuous sexual assault of a minor to require that the jury unanimously agree as to which three acts constitute the offense, even if they cannot agree on how many acts occurred overall.

Testimony in support of this measure was submitted by the Office of the Public Defender, Department of the Prosecuting Attorney for the County of Maui, and one individual. Testimony in opposition to this measure was submitted by the Department of the Attorney General (AG). Comments were submitted by one individual.

Your Committee finds that this measure is in response to State v. Rabago, No. 25378, slip op. (Haw. Dec. 29, 2003) in which the Hawaii Supreme Court found that section 707-733.5(2), Hawaii Revised Statutes (HRS), was unconstitutional. Specifically, the Court found that this section violates a defendant's right to a unanimous verdict by specifying that the "trier of fact, if a jury, need not agree on which acts constitutes the requisite number."

However, your Committee noted concerns from the AG that the measure will not do anything to avoid the Rabago decision. In fact, the AG notes that the only way that the decision in Rabago could be overruled would be if the Constitution of the State of Hawaii was amended. Your Committee agrees with the AG's concerns and determinations.

Your Committee adopted the amendments suggested by the AG to amend this measure by:

(1) Adding a constitutional amendment to allow the Legislature to define what behavior constitutes a continuing course of conduct in sexual assault crimes; and

(2) Reenacting section 707-733.5 with minor technical, nonsubstantive changes.

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. 2789, H.D. 1, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 2789, H.D. 1, 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