846E-1 Definitions. As used in this chapter, unless the context clearly requires otherwise:

"Agency having jurisdiction" means that agency with the authority to direct the release of a person serving a sentence or term of confinement or place a person on probation, supervised release, or parole and includes the department of public safety, the Hawaii paroling authority, the courts, and the department of health.

"Attorney general" means the attorney general of the State of Hawaii, the department of the attorney general, or an authorized representative of the attorney general.

"Chief of police" means the county chief of police, the county police department, or an authorized representative of the chief of police.

"Clean record" means no conviction for a felony or covered offense, if placed on probation or parole, completion of probation or parole without more than one revocation, and, for sex offenders, successful completion of an appropriate sex offender treatment program, if such program was ordered.

"Conviction" means a judgment on the verdict, or a finding of guilt after a plea of guilty or nolo contendere, excluding the adjudication of a minor, and occurs on the date judgment is entered.

"Covered offender" means a "sex offender" or an "offender against minors", as defined in this section.

"Covered offense" means a criminal offense that is:

(1) A crime within the definition of "crimes against minors" in this section; or

(2) A crime within the definition of "sexual offense" in this section.

"Crime against minors" excludes "sexual offenses" as defined in this section and means a criminal offense that consists of:

(1) Kidnapping of a minor, by someone other than a parent;

(2) Unlawful imprisonment in the first or second degree that involves the unlawful imprisonment of a minor by someone other than a parent;

(3) An act, as described in chapter 705, that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the offenses designated in paragraph (1) or (2);

(4) A criminal offense that is comparable to or which exceeds one of the offenses designated in paragraphs (1) through (3); or

(5) Any federal, military, out-of-state, tribal, or foreign conviction for any offense that, under the laws of this State, would be a crime against minors as designated in paragraphs (1) through (4).

"Foreign conviction" means a conviction under the laws of:

(1) Canada, United Kingdom, Australia, or New Zealand; or

(2) Any other foreign country, if the United States Department of State, in its Country Reports on Human Rights Practices, has concluded that an independent judiciary vigorously enforced the right to a fair trial in that country during the year in which the conviction occurred and enforces the right to a fair trial to the same or higher standard as the countries listed in paragraph (1).

"Offender against minors" means a person who is not a "sex offender", as defined in this section, and is or has been:

(1) Convicted at any time, whether before or after May 9, 2005, of a "crime against minors" as defined in this section; or

(2) Charged at any time, whether before or after May 9, 2005, with a "crime against minors" as defined in this section and who is found unfit to proceed and is released into the community or who is acquitted due to a physical or mental disease, disorder, or defect pursuant to chapter 704 and is released into the community.

"Out-of-state conviction" means a conviction in any other state of the United States, the District of Columbia, or the five principal United States territories, including the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, and the United States Virgin Islands.

"Parent" means a parent, legal guardian, or a person who has a substantial familial or hanai relationship with the minor.

"Permanent residence" means a building, permanent structure or unit therein, or watercraft where the covered offender resides and intends to reside indefinitely, or at least for the next one hundred eighty days, and which the offender owns, rents, or occupies with the consent of the owner.

"Registration information" means the information specified in section 846E-2(d) and (e).

"Release" means release from:

(1) Imprisonment;

(2) Imprisonment and placed on parole;

(3) Imprisonment and placed on furlough;

(4) Any form of commitment, custody, or confinement resulting from an order made pursuant to chapter 704; or

(5) A halfway house or other equivalent facility,

whichever is later.

"Repeat covered offender" means:

(1) A person who is or has been convicted at any time, whether before or after May 9, 2005, of more than one covered offense as defined in this section, except that a conviction for multiple counts within a single charging document that allege covered offenses against the same victim and that allege the same date of the covered offense against that single victim shall be considered, for the purposes of this definition, a single covered offense; or

(2) A person who is or has been charged at any time, whether before or after May 9, 2005, with more than one covered offense as defined in this section and who has been, more than once, either:

(A) Convicted;

(B) Found unfit to proceed pursuant to chapter 704; or

(C) Acquitted due to a physical or mental disease, disorder, or defect pursuant to chapter 704.

"Sex offender" means:

(1) A person who is or has been convicted at any time, whether before or after May 9, 2005, of a "sexual offense"; or

(2) A person who is or has been charged at any time, whether before or after May 9, 2005, with a "sexual offense" and is or has been found unfit to proceed and is or has been released into the community or who is acquitted due to a physical or mental disease, disorder, or defect pursuant to chapter 704 and is released into the community.

"Sexual offense" means an offense that is:

(1) Set forth in section 707-730(1), 707-731(1), 707-732(1), 707-733(1)(a), 707-733.6, 712-1202(1), or 712-1203(1), but excludes conduct that is criminal only because of the age of the victim, as provided in section 707-730(1)(b), or section 707-732(1)(b) if the perpetrator is under the age of eighteen;

(2) An act defined in section 707-720 if the charging document for the offense for which there has been a conviction alleged intent to subject the victim to a sexual offense;

(3) An act that consists of:

(A) Criminal sexual conduct toward a minor, including but not limited to an offense set forth in section 707-759;

(B) Solicitation of a minor who is less than fourteen years old to engage in sexual conduct;

(C) Use of a minor in a sexual performance;

(D) Production, distribution, or possession of child pornography chargeable as a felony under section 707-750, 707-751, or 707-752;

(E) Electronic enticement of a child chargeable under section 707-756 or 707-757 if the offense was committed with the intent to promote or facilitate the commission of another covered offense as defined in this section; or

(F) Solicitation of a minor for prostitution in violation of section 712-1209.1;

(4) A violation of privacy under section 711-1110.9;

(5) An act, as described in chapter 705, that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the offenses designated in paragraphs (1) through (4);

(6) A criminal offense that is comparable to or that exceeds a sexual offense as defined in paragraphs (1) through (5); or

(7) Any federal, military, out-of-state, tribal, or foreign conviction for any offense that under the laws of this State would be a sexual offense as defined in paragraphs (1) through (6).

"Temporary residence" means a building, permanent structure or unit therein, watercraft, emergency shelter, or transitional housing facility where the covered offender resides, but does not intend to reside for more than one hundred eighty days.

"Tribal conviction" means a conviction by a tribal court of an Indian tribe recognized by the government of the United States. [L 1997, c 316, pt of 2; am L 1998, c 194, 1; am L 2003, c 62, 3; am L 2004, c 59, 1; am L 2005, c 45, 3; am L 2006, c 60, 5 and c 106, 1; am L 2008, c 80, 4; am L 2009, c 11, 10; am L 2011, c 125, 1; am L 2013, c 64, 3, 4 and c 247, 5]

 

Note

 

Applicability of 2011 amendment. L 2011, c 125, 4.

The L 2013, c 64, 3 amendment applies to any acts committed prior to, on, or after April 30, 2013. L 2013, c 64, 11.

 

Case Notes

 

Indecent exposure, in violation of 707-734, does not constitute an offense that entails "criminal sexual conduct" and, consequently, persons convicted of indecent exposure are not "sex offenders" for purposes of this chapter; thus, defendant was not required to register as a "sex offender" pursuant to this chapter. 102 H. 383, 76 P.3d 935 (2003).

Under article I, 5, of the Hawaii constitution, due process requires that a convicted sex offender under this section be afforded the right to a judicial hearing at which evidence may be offered to demonstrate that continuance of all or part of the lifetime registration requirements are not necessary in a particular case to fulfill the public need to which the sex offender act responded. 105 H. 222, 96 P.3d 242 (2004).

Defendant argued that 707-756 was void for vagueness because "it refers to a confusing labyrinth of language in [this section] that results in guesswork and differences in opinion". There was no constitutionally-infirm vagueness in the "comparable to" language of the catchall provisions in the definitions of "crime against minors" and "sexual offense" (2012); however, the language regarding a criminal offense that "exceeds" one of the specifically-described offenses was unconstitutionally vague. Because defendant's behavior fell under a "clearly proscribed" "covered offense", the "exceeds" language in this section was unnecessary to sustain a conviction against defendant and defendant could not complain of the vagueness of the law as applied to defendant. The second part of the catchall provisions contained some redundancy in the application to 707-756(1), but the criminal prohibition was clear. 131 H. 312 (App.), 318 P.3d 602 (2013).

Where it was not necessary for defendant to actually commit one of the felony offenses defined in this section in order to violate the prohibition against the electronic enticement of a child under 707-756(1) but only necessary under 707-756(1)(b)(iii) that defendant act with the intent to promote or facilitate the commission of a felony offense defined in this section, the State was not required to specify in the indictment which felony offense defined in this section that defendant intended to promote or facilitate. 120 H. 480 (App.), 210 P.3d 3 (2009).

Discussed: 134 H. 515, 345 P.3d 181 (2015).

 

 

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