PART I.  GENERAL PROVISIONS RELATING TO OFFENSES

AGAINST THE PERSON

 

     §707-700  Definitions of terms in this chapter.  In this chapter, unless a different meaning plainly is required:

     "Bodily injury" means physical pain, illness, or any impairment of physical condition.

     "Compulsion" means absence of consent, or a threat, express or implied, that places a person in fear of public humiliation, property damage, or financial loss.

     "Dangerous instrument" means any firearm, whether loaded or not, and whether operable or not, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury.

     "Deviate sexual intercourse" means any act of sexual gratification between a person and an animal or a corpse, involving the sex organs of one and the mouth, anus, or sex organs of the other.

     "Emergency worker" means any:

     (1)  Law enforcement officer, including any police officer, public safety officer, parole or probation officer, or any other officer of any county, state, federal, or military agency authorized to exercise law enforcement or police powers;

     (2)  Firefighter, emergency medical services personnel, emergency medical technician, ambulance crewmember, or any other emergency response personnel;

     (3)  Member of the Hawaii National Guard on any duty or service done under or in pursuance of an order or call of the governor or the President of the United States or any proper authority;

     (4)  Member of the United States Army, Air Force, Navy, Marine Corps, or Coast Guard on any duty or service performed under or in pursuance of an order or call of the President of the United States or any proper authority;

     (5)  Member of the National Guard from any other state ordered into service by any proper authority; or

     (6)  Person engaged in emergency management functions as authorized by the director of Hawaii emergency management or the administrator or director of the county emergency management agency or as otherwise authorized under chapter 127A.

     "Labor" means work of economic or financial value.

     "Married" includes persons legally married, and a male and female living together as husband and wife regardless of their legal status, but does not include spouses living apart.

     "Mentally defective" means a person suffering from a disease, disorder, or defect which renders the person incapable of appraising the nature of the person's conduct.

     "Mentally incapacitated" means a person rendered temporarily incapable of appraising or controlling the person's conduct as a result of the influence of a substance administered to the person without the person's consent.

     "Person" means a human being who has been born and is alive.

     "Physically helpless" means a person who is unconscious or for any other reason physically unable to communicate unwillingness to an act.

     "Public highway" shall have the same meaning as in section 264-1.

     "Relative" means parent, ancestor, brother, sister, uncle, aunt, or legal guardian.

     "Restrain" means to restrict a person's movement in such a manner as to interfere substantially with the person's liberty:

     (1)  By means of force, threat, or deception; or

     (2)  If the person is under the age of eighteen or incompetent, without the consent of the relative, person, or institution having lawful custody of the person.

     "Serious bodily injury" means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

     "Services" means a relationship between a person and the actor in which the person performs activities under the supervision of or for the benefit of the actor.  Prostitution-related and obscenity-related activities as set forth in chapter 712 are forms of "services" under this section.  Nothing in this chapter shall be construed to legitimize or legalize prostitution.

     "Sexual contact" means any touching, other than acts of "sexual penetration", of the sexual or other intimate parts of another, or of the sexual or other intimate parts of the actor by another, whether directly or through the clothing or other material intended to cover the sexual or other intimate parts.

     "Sexual penetration" means:

     (1)  Vaginal intercourse, anal intercourse, fellatio, deviate sexual intercourse, or any intrusion of any part of a person's body or of any object into the genital or anal opening of another person's body; it occurs upon any penetration, however slight, but emission is not required.  As used in this definition, "genital opening" includes the anterior surface of the vulva or labia majora; or

     (2)  Cunnilingus or anilingus, whether or not actual penetration has occurred.

For purposes of this chapter, each act of sexual penetration shall constitute a separate offense.

     "Street" shall have the same meaning as in section 291C‑1.

     "Strong compulsion" means the use of or attempt to use one or more of the following to overcome a person:

     (1)  A threat, express or implied, that places a person in fear of bodily injury to the individual or another person, or in fear that the person or another person will be kidnapped;

     (2)  A dangerous instrument; or

     (3)  Physical force.

     "Substantial bodily injury" means bodily injury which causes:

     (1)  A major avulsion, laceration, or penetration of the skin;

     (2)  A burn of at least second degree severity;

     (3)  A bone fracture;

     (4)  A serious concussion; or

     (5)  A tearing, rupture, or corrosive damage to the esophagus, viscera, or other internal organs.

     "Vehicle" has the same meaning as in section 291E-1.

     "Vulnerable user" means:

     (1)  A pedestrian legally within a street or public highway;

     (2)  A roadway worker actually engaged in work upon a street or public highway or in work upon utility facilities along a street or public highway, or engaged in the provision of emergency services within a street or public highway, including but not limited to:

          (a) Construction and maintenance workers; and

          (b)  Police, fire, and other emergency responders; or

     (3)  A person legally operating any of the following within the street or public highway:

          (a)  A bicycle;

          (b)  A moped;

          (c)  An electric personal assistive mobility device; or

          (d)  A wheelchair conveyance or other personal mobility device. [L 1972, c 9, pt of §1; am L 1973, c 136, §6; am L 1980, c 223, §1; am L 1981, c 213, §1; am L 1986, c 314, §48; am L 1987, c 181, §7; gen ch 1993; am L 2001, c 30, §1; am L 2004, c 61, §3; am L 2006, c 116, §4 and c 230, §26; am L 2008, c 147, §1; am L 2012, c 21, §1 and c 316, §1; am L 2014, c 111, §15; am L 2015, c 35, §23; am L 2016, c 231, §32]

 

COMMENTARY ON §707-700

 

  This section is definitional only and, of course, specifies no offense.  A discussion of the definitions in this section, when needed or appropriate, is found in the commentary to the substantive offenses employing the terms defined.

 

SUPPLEMENTAL COMMENTARY ON §707-700

 

  With respect to Item (11), relating to the definition of "married", the Proposed Draft had recommended that "married" should also include "a male and female living together as man and wife regardless of their legal status."  The Code as originally adopted in 1972 did not contain that recommended clause.  However, by Act 136, Session Laws 1973, the clause was restored.  The legislature declared, "the definition of 'married' is amended to conform to the language of the proposed Draft of the Hawaii Penal Code as submitted by the Judicial Council of Hawaii and recognizes the prevalence of many male and female couples living together although not legally married."  House Standing Committee Report No. 726.

  Act 223, Session Laws 1980, amended the definitions of "sexual intercourse" and "forcible compulsion" to make their meanings less restrictive so as to bring more conduct within the scope of sexual offenses.  It also deleted the definition of "female."  This term was applicable only to the offense of rape, and it became superfluous when the offense was "de-sexed" in 1979.

  Act 213, Session Laws 1981, sought to clarify the definition of "forcible compulsion."  One of the primary changes was to delete the requirement that physical force be such as to "overcome resistance."

  Act 314, Session Laws 1986, added the definition of "substantial bodily injury" to account for injuries far more serious than bodily injury--which includes any physical pain, illness, or impairment--but do not approximate the risk of death, permanent loss or disfigurement that constitute "serious bodily injury."

  Act 314 also added the definition of "sexual penetration."  That definition was enacted to express the legislature's intent that even though rape and sodomy are renamed as sexual assault offenses, prosecutors may still charge a defendant with multiple counts for each act of penetration.  Conference Committee Report No. 51-86.

  Act 181, Session Laws 1987, broadened the definitions of "sexual contact" by including touching of the sexual or other intimate parts through the clothing or other material intended to cover the sexual or intimate parts.  Senate Standing Committee Report No. 1130.

  Act 30, Session Laws 2001, amended the definition of "substantial bodily injury" by deleting the requirement that qualifying second degree burns be caused by chemical, electrical, friction, or scalding means.  The legislature found that the definitions of many crimes include a requirement of "substantial bodily injury" and that defining that term too restrictively excludes from successful prosecution many otherwise criminal actions.  The legislature supported the categorization of every second degree burn, regardless of origin, as a "substantial bodily injury."  The legislature found that burns that are substantial bodily injuries are determined by the severity and degree, not by the nature or cause of the injuries.  Senate Standing Committee Report No. 829, House Standing Committee Report No. 1220.

  Act 61, Session Laws 2004, amended the definitions of "sexual contact" and "sexual penetration."  The legislature found that clarification of the definition of "sexual penetration" was necessary because of a recent Hawaii supreme court decision, in which 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.  The legislature found that it is usually difficult for many sexual assault victims to know whether penetration, however slight, occurred during the act of cunnilingus.  Also, 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.  The legislature believed that the definition of sexual penetration should include the acts of cunnilingus or anilingus, regardless of whether there was actual penetration.  Senate Standing Committee Report No. 3121.

  Act 116, Session Laws 2006, defined "emergency worker."  Act 116 penalized the commission of certain crimes during a time of a civil defense emergency proclaimed by the governor or during a period of disaster relief.  The legislature found that Hurricanes Katrina and Rita created situations that highlighted the prevalence of opportunistic crimes that can occur during these times.  When resources are needed to restore law and order, emergency response aid to victims may be hampered or delayed, leaving victims at an increased risk of bodily injury or death.  Stronger measures to control law and order may deter looting and other crimes.  Senate Standing Committee Report No. 3302, House Standing Committee Report No. 757-06, Conference Committee Report No. 64-06.

  Act 230, Session Laws 2006, defined the term "genital opening" as used in the definition of "sexual penetration."  House Standing Committee Report No. 665-06.

  Act 230, Session Laws 2006, made a technical nonsubstantive amendment to the definition of "mentally incapacitated."

  Act 147, Session Laws 2008, amended this section by defining "labor" and "services."  Act 147 made it a crime of kidnapping to intentionally or knowingly restrain another person with the intent to unlawfully obtain the labor or services of the person, regardless of whether a debt collection is involved.  Conference Committee Report No. 38-08.

  Act 21, Session Laws 2012, amended this section by adding the definition of "vehicle" for the purpose of modifying the scope of offenses relating to negligent injury to broaden the offenses' application to include injuries caused by more types of vehicles to increase public safety.  The legislature found that a person was guilty of a negligent injury offense if that person caused serious or substantial bodily injury to another person while operating a motor vehicle.  Act 21 would allow this negligent injury offense to also include the negligent operation of a moped or vessel.  Adding a broader definition for vehicles under the Hawaii penal code would hold vehicle operators more accountable for their actions, especially when their actions involve the safety of others.  Senate Standing Committee Report No. 2449, House Standing Committee Report No. 1101-12.

  Act 316, Session Laws 2012, amended this section by adding definitions for "public highway," "street," and "vulnerable user."

  Act 111, Session Laws 2014, amended the definition of "emergency worker."  Act 111 updated and recodified Hawaii's emergency management laws to conform with nationwide emergency management practices by, among other things, establishing a Hawaii emergency management agency in the state department of defense with the functions and authority currently held by the state civil defense agency; establishing the power and authority of the director of Hawaii emergency management, who will be the adjutant general, and providing the director with the functions and authority currently held by the director of civil defense; establishing county emergency management agencies, each to be under the respective county mayor's direction, with the functions and authority currently held by the local organizations for civil defense; and repealing the chapters on disaster relief [chapter 127] and the civil defense [and] emergency act [chapter 128], which were determined to be obsolete with the creation of the Hawaii emergency management agency.  Conference Committee Report No. 129-14.

  Act 35, Session Laws 2015, made technical nonsubstantive amendments to the definition of "vulnerable user."

  Act 231, Session Laws 2016, amended the definition of "sexual contact" to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).

 

Case Notes

 

  Forcible compulsion construed with respect to 18-month-old victim.  56 H. 664, 548 P.2d 271 (1976).

  "Sexual intercourse" means coitus or bodily intrusions or penetrations which are malum in se.  66 H. 281, 660 P.2d 522 (1983).

  "Serious bodily injury":  "serious" modifies only "permanent disfigurement", not "protracted loss" phrase.  75 H. 419, 864 P.2d 583 (1993).

  Definition of "sexual contact" not unconstitutionally overbroad as it does not interfere with the constitutionally protected activity of nude dancing; section permits dancing in the nude and allows customers to look at performers dancing in the nude; the conduct prohibited is the touching of sexual or intimate parts.  88 H. 19, 960 P.2d 1227 (1998).

  Definition of "sexual contact" not unconstitutionally vague as it establishes a bright line rule "you can look but you can't touch", gives a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited, constitutes an explicit standard that avoids arbitrary and discriminatory enforcement and is not subjective.  88 H. 19, 960 P.2d 1227 (1998).

  Under the plain meaning of §712-1200 and this section, touching the sexual or other intimate parts of another person, for a fee, constitutes prostitution, even if the touching occurs through clothing.  88 H. 19, 960 P.2d 1227 (1998).

  A specific unanimity jury instruction was not required for offense of second degree unlawful imprisonment under §707-722 where defendant's conduct, as proved by the prosecution, constituted a continuing course of conduct "set on foot by a single impulse and operated by an unintermittent force", with "one general intent ... and one continuous plan".  95 H. 440, 24 P.3d 32 (2001).

  As a precondition to convicting a person of first degree sexual assault, in violation of §707-730(1)(b), the prosecution must prove beyond a reasonable doubt that the person committed an act of "any penetration, however slight", as mandated by the plain language of the definition of "sexual penetration" contained in this section.  102 H. 391, 76 P.3d 943 (2003).

  Based on the plain language and legislative history of this section and construing the definition of "sexual contact" with reference to other definitions relating to sexual relations in this section and §712-1210, contact with the interior of the mouth constitutes "touching of intimate parts" under the definition of "sexual contact" in this section.  108 H. 279, 118 P.3d 1222 (2005).

  According to the plain language of the Hawaii penal code, a fetus is not included within the definition of the term "person".  109 H. 115, 123 P.3d 1210 (2005).

  Where the definition of "sexual conduct" under §712-1210 includes "physical contact with a person's clothed or unclothed ... buttocks ... for the purposes of sexual stimulation, gratification, or perversion", an in pari materia reading of §712-1210 as well as the legislative history of this section supports the conclusion that the legislature intended the buttocks to be an "intimate part" for purposes of "sexual contact" as that phrase is defined in this section.  125 H. 1, 249 P.3d 1141 (2011).

  There was overwhelming and compelling evidence tending to show defendant guilty beyond a reasonable doubt of kidnapping, where defendant restrained victim intentionally or knowingly, with intent to inflict bodily injury upon victim or subject victim to a sexual offense or terrorize victim, by, inter alia, striking victim in the face and back of the head several times specifically in response to victim's request to let victim go and victim's attempts to escape.  126 H. 267, 270 P.3d 997 (2011).

  There was overwhelming and compelling evidence tending to show defendant guilty beyond a reasonable doubt of two counts of sexual assault in the third degree, where defendant subjected victim to sexual contact by placing defendant's hand and mouth on victim's breast, respectively, by strong compulsion, and did so knowingly as to each element of the offense.  126 H. 267, 270 P.3d 997 (2011).

  There was overwhelming evidence tending to show defendant guilty beyond a reasonable doubt of two counts of sexual assault in the first degree, where defendant subjected victim to acts of sexual penetration by inserting defendant's penis into victim's mouth and genital openings, respectively, by strong compulsion, and did so knowingly as to each element of the offense.  126 H. 267, 270 P.3d 997 (2011).

  "Bodily injury".  2 H. App. 19, 624 P.2d 1374 (1981).

  "Mentally incapacitated"; consent vitiated by deception; based on the record, victim was "physically helpless".  5 H. App. 404, 696 P.2d 846 (1985).

  "Mentally defective".  5 H. App. 659, 706 P.2d 1333 (1985).

  When jury can infer handgun is dangerous.  5 H. App. 674, 706 P.2d 453 (1985).

  Evidence of injuries sustained by victim struck in face with golf club, including broken facial and jaw bones, was sufficient to prove serious bodily injury.  8 H. App. 595, 817 P.2d 123 (1991).

  In the terroristic threatening context, an instrument is a dangerous instrument, as defined in this section, when it is known to be capable of producing death or serious bodily injury when used in the manner it is threatened to be used.  10 H. App. 584, 880 P.2d 213 (1994).

  Witness' testimony that witness was "sore" after being struck by appellant was sufficient to establish "physical pain" and thus, the element of "bodily injury" in assault charge.  79 H. 265 (App.), 900 P.2d 1332 (1995).

  Section imposes requirement that laceration must be "major" in order to fall within definition of "substantial bodily injury".  82 H. 373 (App.), 922 P.2d 986 (1996).

  There was substantial evidence that minor caused serious bodily injury to complainant as defined in this section where minor inflicted bodily injury which caused protracted loss or impairment of the function of any bodily member or organ--namely, the eye injury that caused the blurred and diplopic vision that was still bothering complainant at the time of trial.  106 H. 530 (App.), 107 P.3d 1203 (2005).

  Where defendant punched and kicked another so ferociously in the face that the lip was split clean through, four teeth were bashed in, the eye was hemorrhaged and pushed inward, and the orbital floor was fractured causing blurred and diplopic vision lasting almost eleven months, there was substantial evidence that the defendant was, at the very least, aware that it was practically certain that defendant's conduct would cause the result required, "serious bodily injury", for conviction of first degree assault.  106 H. 530 (App.), 107 P.3d 1203 (2005).

  Where there was substantial evidence that the manner in which the "little black stick" was used was capable of producing serious bodily injury as defined under this section, minor was properly convicted as an accomplice to robbery in the first degree under §708-840.  107 H. 439 (App.), 114 P.3d 945 (2005).

  Although the evidence was insufficient to show that defendant committed the offense of first degree assault, there was ample evidence to show that the victim's injury satisfied the definition of "substantial bodily injury" under this section and that defendant thus committed the lesser included offense of second degree assault in violation of §707-711(1)(a); thus the jury, having returned a guilty verdict against defendant for first degree assault, must also have found sufficient evidence to prove the lesser included offense of second degree assault.  116 H. 445 (App.), 173 P.3d 592 (2007).

  A stabbing injury that is caused by a knife blade that penetrates close to vital internal organs and vessels but misses without harming them, so that the injury quickly resolves itself without the need for significant treatment, does not create a substantial risk of death within the meaning of this section.  116 H. 445 (App.), 173 P.3d 592 (2007).

 

 

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