PART II. OFFENSES RELATED TO OBSCENITY
§712-1210 Definitions of terms in this part. In this part, unless a different meaning is required:
"Age verification records of sexually exploited individuals" means individually identifiable records pertaining to every sexually exploited individual provided to patrons or customers of a public establishment or in a private club or event. Such records shall include:
(1) Each sexually exploited individual's name and date of birth, as ascertained by an examination of the individual's valid driver's license, official state identification card, or passport;
(2) A certified copy of each sexually exploited individual's driver's license, official state identification card, or passport; and
(3) Any name ever used by each sexually exploited individual including but not limited to maiden name, aliases, nicknames, stage names, or professional names.
"Age verification records of sexual performers" means individually identifiable records pertaining to every sexual performer portrayed in a visual depiction of sexual conduct, which include:
(1) Each performer's name and date of birth, as ascertained by the producer's personal examination of a performer's valid driver's license, official state identification card, or passport;
(2) A certified copy of each performer's valid driver's license, official state identification card, or passport; and
(3) Any name ever used by each performer including, but not limited to, maiden name, alias, nickname, stage name, or professional name.
"Community standards" means the standards of the State.
"Disseminate" means to manufacture, issue, publish, sell, lend, distribute, transmit, exhibit, or present material or to offer or agree to do the same.
"Erotic or nude massager" means a nude person providing massage services with or without a license.
"Exotic or nude dancer" means a person performing, dancing, or entertaining in the nude, and includes patrons participating in a contest or receiving instruction in nude dancing.
"Intent to profit" means the intent to obtain monetary gain.
"Material" means any printed matter, visual representation, or sound recording, and includes but is not limited to books, magazines, motion picture films, pamphlets, newspapers, pictures, photographs, drawings, sculptures, and tape or wire recordings.
"Minor" means any person less than sixteen years old.
"Nude" means unclothed or in attire, including but not limited to sheer or see-through attire, so as to expose to view any portion of the pubic hair, anus, cleft of the buttocks, genitals or any portion of the female breast below the top of the areola.
"Performance" means any play, motion picture film, dance, or other exhibition performed before an audience.
"Pornographic". Any material or performance is "pornographic" if all of the following coalesce:
(a) The average person, applying contemporary community standards would find that, taken as a whole, it appeals to the prurient interest.
(b) It depicts or describes sexual conduct in a patently offensive way.
(c) Taken as a whole, it lacks serious literary, artistic, political, or scientific merit.
"Pornographic for minors". Any material or performance is "pornographic for minors" if:
(1) It is primarily devoted to explicit and detailed narrative accounts of sexual excitement, sexual conduct, or sadomasochistic abuse; and:
(a) It is presented in such a manner that the average person applying contemporary community standards, would find that, taken as a whole, it appeals to the prurient interest; and
(b) Taken as a whole, it lacks serious literary, artistic, political, or scientific value; or
(2) It contains any photograph, drawing, or similar visual representation of any person of the age of puberty or older revealing such person with less than a fully opaque covering of his or her genitals and pubic area, or depicting such person in a state of sexual excitement or engaged in acts of sexual conduct or sadomasochistic abuse; and:
(a) It is presented in such a manner that the average person, applying contemporary community standards, would find that, taken as a whole, it appeals to the prurient interest; and
(b) Taken as a whole, it lacks serious literary, artistic, political, or scientific value.
"Produces" means to manufacture or publish any pornographic performance, book, magazine, periodical, film, videotape, computer image, or other similar matter and includes the duplication, reproduction, or reissuing of any such matter, but does not include mere distribution or any other activity that does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted.
"Sadomasochistic abuse" means flagellation or torture by or upon a person as an act of sexual stimulation or gratification.
"Sexual conduct" means acts of masturbation, bestiality, sexual intercourse or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or the breast or breasts of a female for the purpose of sexual stimulation, gratification, or perversion.
"Sexual excitement" means the condition of the human male or female genitals when in a state of sexual stimulation or arousal.
"Sexually exploited individuals" means erotic or nude massagers and exotic or nude dancers.
"Sexual performer" includes any person portrayed in a pornographic visual depiction engaging in, or assisting another person to engage in, sexual conduct. [L 1972, c 9, pt of §1; am L 1981, c 106, §1; am L 2002, c 240, §4; am L 2005 c 10, §; am L 2016, c 16, §4; am L 2018, c 95, §1]
COMMENTARY ON §712-1210
Act 106, Session Laws 1981, added the definition of "community standards," to mean a statewide standard. It also amended the definitions of "pornographic" and "pornographic to minors." The conference committee stated in its report (Senate Conference Committee Report No. 14 and House Conference Committee Report No. 12) that the amendments were merely to conform the definitions to the holdings of the United States Supreme Court in Miller v. California, 413 U.S. 15 (1973) and the Hawaii supreme court in State v. Manzo, 58 Haw. 440 (1978).
Act 240, Session Laws 2002, amended this section by adding definitions to comport with sexual exploitation of a minor offenses created by the Act.
Act 10, Session Laws 2005, amended this section by repealing the superfluous definition of "sexual conduct" added by Act 240, Session Laws 2002. This section already provided a sufficient definition of "sexual conduct." House Standing Committee Report No. 1281.
Act 16, Session Laws 2016, amended this section by amending the definition of the term "sexual conduct" as that term is used in the penal code for offenses related to obscenity, by removing unnecessary and archaic language regarding sexual orientation. House Standing Committee Report No. 1124-16.
Act 95, Session Laws 2018, amended the definition of "pornographic for minors" by clarifying that a material or performance is not required to appeal specifically to the minor's prurient interest in order to be found pornographic for minors. The legislature found that one element of the definition of pornographic material in general is that it appeals to the prurient interest. However, in some cases regarding material that is pornographic to minors, a minor may be exposed to material before the minor is of sufficient age to have developed prurient interests. Senate Standing Committee Report No. 3034.
Law Journals and Reviews
State v. Kam: The Constitutional Status of Obscenity in Hawaii. 11 UH L. Rev. 253 (1989).
Grand jury was presented with sufficient information to determine the existence of probable cause that material distributed to minor by defendant was pornographic for minors under paragraph (7)(a). 82 H. 474, 923 P.2d 891 (1996).
Based on the plain language and legislative history of §707-700 and construing the definition of "sexual contact" with reference to other definitions relating to sexual relations in §707-700 and this section, contact with the interior of the mouth constitutes "touching of intimate parts" under the definition of "sexual contact" in §707-700. 108 H. 279, 118 P.3d 1222 (2005).
Where the definition of "sexual conduct" under this section 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 this section as well as the legislative history of §707-700 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 §707-700. 125 H. 1, 249 P.3d 1141 (2011).
Construed; provision not unconstitutional for overbreadth or void for vagueness. 58 H. 440, 573 P.2d 945 (1977).
Material held to be "utterly without redeeming social value". 63 H. 418, 629 P.2d 1130 (1981).
Cited: 413 U.S. 15.