§706-606.3 Expedited sentencing program. (1) A person who has committed intra-family sexual assault may be considered for the expedited sentencing program in accordance with this section. As used in this section, "intra-family" sexual assault means any criminal offense of felony sexual assault under section 707-730, 707-731, or 707-732, or incest, as defined in section 707-741, in which the victim of the offense is related to the defendant by consanguinity or marriage, or resides in the same dwelling unit as the defendant, and the victim was, at the time of the sexual assault, under the age of eighteen.
(2) The police department of the county in which the sexual assault took place or any other appropriate investigative law enforcement agency shall confer with the appropriate prosecuting authority. If the prosecuting authority determines that it is appropriate to provide notice of the expedited sentencing program to the defendant, the police department or other appropriate investigative law enforcement agency shall give the defendant written notice of the existence of the expedited sentencing program provided in this section. The notice provision shall not be a prerequisite to questioning the defendant. The notice provision shall not obligate the prosecuting authority to issue a statement of "no objection" when considering the defendant for the expedited sentencing program.
(3) The written notice shall state:
"YOU ARE ADVISED TO SEEK LEGAL COUNSEL IMMEDIATELY. IF YOU CANNOT AFFORD PRIVATE COUNSEL, CONTACT THE OFFICE OF THE PUBLIC DEFENDER. FAILURE TO CONTACT AN ATTORNEY MAY DISQUALIFY YOU FROM THIS PROGRAM. A copy of section 706-606.3, Hawaii Revised Statutes, is attached to this notice. You are under investigation for a felony sexual assault against a minor. Upon completion of this investigation, if there is sufficient basis to believe that you have committed a sexual assault, the case will be referred to the appropriate prosecuting authority for review and possible institution of criminal charges. Hawaii law provides for a range of ordinary prison sentences for felony sexual assault ranging from five years up to twenty years, or life imprisonment, depending upon the offense. However, section 706-606.3, Hawaii Revised Statutes, provides that a person who commits a sexual assault upon a minor but who admits guilt, cooperates with the prosecuting authority, and participates in appropriate assessment and treatment may be considered for the expedited sentencing program. A person who is sentenced in accordance with the expedited sentencing program may be sentenced to a term of probation. Probation may be revoked, however, for failure to comply with the terms of the probation pursuant to section 706-625. To qualify for consideration for the expedited sentencing program, your legal counsel first must request from the office of the prosecuting authority named in this notice a written statement as to whether that office has any objection to your being considered for the expedited sentencing program. THE COURT WILL NOT CONSIDER YOU FOR THE EXPEDITED SENTENCING PROGRAM UNDER SECTION 706-606.3, HAWAII REVISED STATUTES, UNLESS YOUR LEGAL COUNSEL HAS RECEIVED A WRITTEN STATEMENT THAT THE APPROPRIATE PROSECUTING AUTHORITY HAS NO OBJECTION TO YOUR BEING CONSIDERED FOR THE EXPEDITED SENTENCING PROGRAM AND THE REQUEST FOR THAT WRITTEN STATEMENT WAS MADE WITHIN FOURTEEN DAYS OF YOUR RECEIPT OF THIS NOTICE. FURTHER, THE COURT WILL NOT CONSIDER YOU FOR THE EXPEDITED SENTENCING PROGRAM UNDER SECTION 706-606.3, HAWAII REVISED STATUTES, UNLESS, ONCE YOUR LEGAL COUNSEL HAS RECEIVED THIS NOTICE, YOU HAVE MADE A GOOD FAITH EFFORT TO AVOID THE NECESSITY OF THE CHILD BEING REMOVED FROM THE FAMILY HOME, INCLUDING BUT NOT LIMITED TO MOVING AND REMAINING OUT OF THE FAMILY HOME UNTIL OTHERWISE ORDERED BY THE COURT."
The written notice also shall provide:
(a) Instructions on how to contact the appropriate prosecuting authority, including any necessary addresses and telephone numbers; and
(b) The name of the person delivering the notice and the date it was given to the alleged offender.
(4) A defendant shall not be considered by the court for the expedited sentencing program under this section unless the defendant's legal counsel requests within fourteen days of the defendant's receipt of the written notice, that the defendant be considered for the expedited sentencing program, and defendant's counsel subsequently receives a written statement from the appropriate prosecuting authority stating that it has no objection to the defendant being considered for the expedited sentencing program in accordance with this section. Additionally, each of the following criteria shall be met:
(a) After receiving the required written notice, the defendant made a good faith effort to avoid the necessity of the child being removed from the family home, including but not limited to moving and remaining out of the family home until otherwise ordered by the court;
(b) The victim of the sexual assault was under the age of eighteen when the sexual assault was committed;
(c) The defendant was never previously sentenced under this section and has never been convicted of felony sexual assault under section 707-730, 707-731, or 707-732, or incest under section 707-741;
(d) A guardian ad litem appointed in a family court proceeding, or a person assigned by the Children's Advocacy Center to serve as guardian ad litem, agreed that it would be in the best interest of the child for the defendant to be considered for the expedited sentencing program. No prosecuting authority shall issue a statement of no objection without this prior agreement; and
(e) The defendant has complied with the requirements for consideration for the expedited sentencing program as established in subsection (6); provided that at sentencing the prosecuting authority may oppose the defendant's participation in the expedited sentencing program if the prosecuting authority determines that the defendant has failed to satisfy the criteria under subsection (6).
(5) The prosecuting authority and the child's guardian ad litem may consult with any other appropriate agency or individual to assist in a decision whether to provide a written statement of "no objection" prior to the defendant being considered for sentencing under the expedited sentencing program.
(6) Within seven business days of receipt of the written notice stating that the appropriate prosecuting authority has no objection to the defendant being considered for the expedited sentencing program in accordance with this section, unless the prosecuting authority waives compliance with the time limit, the defendant shall:
(a) Continue to make a good faith effort to avoid the necessity of the child being removed from the family home, including but not limited to moving and remaining out of the family home until otherwise ordered by the court;
(b) Admit to commission of the sexual assault to the police department of the county in which the assault took place or other appropriate investigative law enforcement agency;
(c) Provide to the appropriate prosecuting authority a written waiver of indictment and preliminary hearing for any criminal charges arising from the sexual assault; and
(d) Enter a voluntary plea of guilty to the charge or charges alleged upon or following arraignment.
(7) Notwithstanding sections 706-606.5, 706-620, 706-659, 706-660, and 706-660.2, a defendant considered for the expedited sentencing program under this section when sentence is imposed may be sentenced to a term of probation pursuant to section 706-624; provided that if the defendant is sentenced to a term of imprisonment as a condition of probation, the term of imprisonment may allow for the defendant's retention of employment.
(8) The term of probation under this section shall be as follows:
(a) For an offense under section 707-730 or 707-731, twenty years; and
(b) For an offense under section 707-732 or 707-741, ten years.
(9) In addition to the conditions of probation provided under section 706-624, a sentence under this section shall include that the defendant shall:
(a) Participate in court approved, appropriate sex offender assessment and treatment that shall conform to the guidelines developed by the adult probation division of the appropriate circuit court, until clinically discharged; provided that:
(i) The prosecuting authority shall be provided notice and the opportunity for a hearing prior to any authorization for treatment discontinuance by the court or the adult probation division;
(ii) The defendant shall pay for the cost of the assessment and treatment to the extent that the defendant has the ability to do so; and
(iii) A lack of assessment and treatment resources shall result in the defendant not being considered for the expedited sentencing program;
(b) Provide a written waiver of confidentiality for any assessment, treatment, counseling, therapy, or other program ordered as a condition of probation;
(c) Comply with all orders entered in a proceeding pursuant to chapter 587A; and
(d) Comply with other condition deemed by the court to be reasonably necessary for the protection of the victim of the sexual assault or the rehabilitation of the defendant.
(10) There shall be a rebuttable presumption in favor of the court imposing a sentence in accordance with this section when a defendant qualifies for the expedited sentencing program, and written notice of "no objection" is issued by the prosecuting authority. The court shall provide written findings of fact setting forth specific reasons justifying imposition of a sentence that is not in accordance with this section. [L 1993, c 316, §§1, 6; am L 1995, c 157, §1; am L 2001, c 127, §§2, 3; am L 2010, c 135, §7]
Children's justice program, see chapter 588.
COMMENTARY ON §706-606.3
Act 316, Session Laws 1993, added this section to create an option for expedited sentencing of persons who have committed intra-family sexual assault. The legislature found that this section offers a new approach to removing obstacles that delay and hinder the successful prosecution of certain sex offenders, offers prosecutors an option to encourage offenders to plead guilty and accept treatment early in the proceedings, and offers hope that treatment and intensive monitoring will minimize the chance of further abuse. The intent is to accomplish an increase in criminal convictions, punishment, and deterrence, while providing better protection for potential victims, not only from sexual assault but from the trauma of being the primary witness against a family member. House Standing Committee Report No. 1174, Senate Standing Committee Report No. 849.
Act 157, Session Laws 1995, extended the sunset date of this section from June 30, 1995 to June 30, 2001. The legislature found that the expedited sentencing program served as "a viable alternative in a small number of select cases" and that the program should continue to be available within the criminal justice system. However, the legislature believed that there was insufficient basis to determine whether the program should be made permanent. Conference Committee Report No. 62.
Act 127, Session Laws 2001, repealed the sunset date for the expedited sentencing program of the family court. The purpose of the program was to allow for the expeditious removal of the offender from the family home, in cases of intra-family felony sexual assault or incest, thus allowing the child to remain in the home. The legislature found that the program applied only to those offenders found to be "safe to probate" and minimized the possibility of revictimizing the child by eliminating the need to testify and requiring treatment and supervision of all members of the child's family. The legislature further found that the program had been effective and beneficial to the families concerned. Senate Standing Committee Report No. 1453, Conference Committee Report No. 114.
Act 135, Session Laws 2010, created a new Child Protective Act [chapter 587A] to make paramount the safety and health of children who have been harmed or are in life circumstances that threaten harm, and to ensure that the Child Protective Act was in conformity with Federal Title IV-E provisions. Conference Committee Report No. 112-10. Act 135 amended this section by replacing the reference to chapter 587 with a reference to the new chapter.