§706-606.4 Sentencing in enumerated offenses committed in the presence of a minor. (1) In addition to the factors considered under section 706-606, the court shall consider the following aggravating factors in determining the particular sentence to be imposed:
(a) The defendant has been convicted of committing or attempting to commit an offense; and
(b) The offense contemporaneously occurred in the presence of a minor.
(2) As used in this section:
"In the presence of a minor" means in the actual physical presence of a child or knowing that a child is present and may hear or see the offense.
"Offense" means a violation of section 707-710 (assault in the first degree), 707-711 (assault in the second degree), 707‑730 (sexual assault in the first degree), 707-731 (sexual assault in the second degree), 707-732 (sexual assault in the third degree), 709-906 (abuse of family or household members), or 711-1109.8 (sexual assault of an animal). [L 1999, c 268, §2; am L 2003, c 3, §16; am L 2016, c 157, §1; am L 2021, c 31, §3]
COMMENTARY ON §706-606.4
Act 268, Session Laws 1999, added this section to require judges, when imposing a sentence, to consider the fact that the crime was committed in the presence of a minor as an aggravating factor of the crime; the court shall consider the aggravating factors in addition to the factors to be considered under §706-606. The legislature found that children who witness domestic violence are harmed in many ways, and acknowledged that domestic violence is a perpetuation of a violent cycle, as children of abuse grow up to be abusers themselves. Studies have documented multiple problems among children that have witnessed continual assaults by one parent on another in the home, including psychological and emotional distress, cognitive functioning problems, and physical problems. Because of the high social and financial costs resulting from domestic violence, the legislature agreed that more serious penalties should be imposed for both their deterrent and punitive effects. Conference Committee Report No. 26.
Act 3, Session Laws 2003, made a technical amendment to this section, by deleting the brackets around the word "or" in the phrase "abuse of family or household members."
Act 157, Session Laws 2016, amended this section to provide that the commission of certain offenses of assault, sexual assault, and abuse of a family or household member in the presence of a minor is an aggravating factor to be considered in the sentencing of the defendant convicted of the offense. The legislature found that research has shown that children who witness assault or domestic violence can suffer severe emotional and developmental difficulties that are similar to those of children who are victims of direct physical and mental abuse. By broadening the application of the aggravating factor considered by the courts when sentencing defendants convicted of committing certain crimes in the presence of a minor pursuant to this section to include the commission of assault and sexual assault offenses regardless of the preexisting legal relationship between the defendant and the victim or the child, Act 157 recognized the impact that witnessing an assault has on a child. The use of the aggravating factor for sentencing does not elevate the seriousness of the offense charged. Conference Committee Report No. 13-16.
Act 31, Session Laws 2021, amended this section to provide that the commission or attempted commission of the offense of sexual assault of an animal in the presence of a minor is an aggravating factor to be considered in the sentencing of the defendant convicted of the offense. The legislature found that sexual assault of an animal has been significantly linked to the sexual abuse of children as well as interpersonal violence and other forms of animal cruelty. In addition, sexual abusers of animals have been shown to collect and share child pornography and express interest in other aberrant behavior involving sexual violence and fetish behaviors. The legislature further found that although Hawaii had strong animal cruelty laws, some acts of sexual assault on animals could not be prosecuted under those laws because the acts did not cause bodily injury. Establishing sexual assault of an animal as a separate crime would allow law enforcement officers to better identify potentially dangerous and violent sexual predators in the community. The legislature noted that the high penalties for the offense of sexual assault of an animal were intended not just to protect animals but also to be a deterrent against the sexual assault of children because animal abuse is often a precursor to child abuse. House Standing Committee Report No. 979, House Standing Committee Report No. 1827, Senate Standing Committee Report No. 43.