707-732 Sexual assault in the third degree. (1) A person commits the offense of sexual assault in the third degree if:

(a) The person recklessly subjects another person to an act of sexual penetration by compulsion;

(b) The person knowingly subjects to sexual contact another person who is less than fourteen years old or causes such a person to have sexual contact with the person;

(c) The person knowingly engages in sexual contact with a person who is at least fourteen years old but less than sixteen years old or causes the minor to have sexual contact with the person; provided that:

(i) The person is not less than five years older than the minor; and

(ii) The person is not legally married to the minor;

(d) The person knowingly subjects to sexual contact another person who is mentally defective, mentally incapacitated, or physically helpless, or causes such a person to have sexual contact with the actor;

(e) The person, while employed:

(i) In a state correctional facility;

(ii) By a private company providing services at a correctional facility;

(iii) By a private company providing community‑based residential services to persons committed to the director of public safety and having received notice of this statute;

(iv) By a private correctional facility operating in the State of Hawaii; or

(v) As a law enforcement officer as defined in section [710-1000],

knowingly subjects to sexual contact an imprisoned person, a person confined to a detention facility, a person committed to the director of public safety, a person residing in a private correctional facility operating in the State of Hawaii, or a person in custody, or causes the person to have sexual contact with the actor; or

(f) The person knowingly, by strong compulsion, has sexual contact with another person or causes another person to have sexual contact with the actor.

Paragraphs (b), (c), (d), and (e) shall not be construed to prohibit practitioners licensed under chapter 453 or 455 from performing any act within their respective practices; provided further that paragraph (e)(v) shall not be construed to prohibit a law enforcement officer from performing a lawful search pursuant to a warrant or an exception to the warrant clause.

(2) Sexual assault in the third degree is a class C felony. [L 1986, c 314, pt of 57; am L 1987, c 181, 11; am L Sp 2001 2d, c 1, 2, 7; am L 2002, c 36, 2, 3; am L 2003, c 62, 1; am L 2004, c 10, 15 and c 61, 5; am L 2009, c 11, 74]

 

Case Notes

 

Sexual assault in the fourth degree under 707-733(1)(a) not an included offense of sexual assault in the third degree under subsection (1)(b) as defined by 701-109(4). 83 H. 308, 926 P.2d 599 (1996).

Where age of victim is element of sexual offense, the specified state of mind is not intended to apply to that element; defendant thus strictly liable with respect to attendant circumstance of victim's age in a sexual assault. 83 H. 308, 926 P.2d 599 (1996).

Sexual assault in the third degree, in violation of subsection (1)(b), is not, and cannot be, a "continuing offense"; each distinct act in violation of this statute constitutes a separate offense under the Hawaii Penal Code. 84 H. 1, 928 P.2d 843 (1996).

Circuit court did not err in instructing the jury on the lesser included offense of sexual assault in the third degree where, although testimony indicated that there were incidents of sexual penetration between complainant and defendant, which would support a conviction for sexual assault in the first degree, a rational juror could have inferred that there was "sexual contact" prior to the penetration, i.e., that there was "touching" of "the sexual or other intimate parts" of complainant, such as complainant's genitalia, buttocks, or other intimate parts, or that complainant touched defendant's "sexual or other intimate parts". 124 H. 90, 237 P.3d 1156 (2010).

Insufficient evidence existed in the record to support defendant's conviction of sexual assault in the third degree under subsection (1)(b) where defendant's conduct of tossing minor back and forth between defendant and minor's father in the pool occurred "a day or two before" the massage and the subsequent massage did not turn defendant's conduct in the pool into a criminal offense. 125 H. 1, 249 P.3d 1141 (2011).

Substantial evidence existed in the record to support defendant's conviction of sexual assault in the third degree under subsection (1)(b) where minor's testimony that defendant touched minor's buttocks during the late night massage constituted the touching of an "intimate part" of minor's body and was credible evidence of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion that defendant knowingly subjected minor, who was eleven years old at the time, to sexual contact. 125 H. 1, 249 P.3d 1141 (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).

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

Based on 701-109(4)(a), fourth degree sexual assault under 707-733(1)(a) is a lesser included offense of third degree sexual assault under subsection (1)(e). 85 H. 92 (App.), 937 P.2d 933 (1997).

Third degree sexual assault committed in violation of subsection (1)(e) not a continuous offense; defendant's convictions of five counts of that offense, each based on a separate sexual contact thus did not violate 701-109(1)(e). 85 H. 92 (App.), 937 P.2d 933 (1997).

Placement of the elemental attendant circumstances after the state of mind in the enumerated elements instruction was not error; when read and considered as a whole, the instructions adequately informed the jury of the prosecution's burden to prove that complainant did not consent to the acts alleged and was not married to defendant at the time, and that defendant was aware of both circumstances when defendant acted. 97 H. 140 (App.), 34 P.3d 1039 (2000).

Although criminal sanctions are clearly directed only at adult conduct under subsection (1)(b) and 707-730(1)(b), there is no legislative history that supports a conclusion that only adults were intended to be prohibited from the proscribed sexual conduct; when the legislature amended subsection (1) and 707-730(1) in 2001, and could have, but did not include language allowing consensual sexual conduct between, for example, two thirteen year olds, the legislative intent was to maintain the existing prohibitions against such conduct. 121 H. 92 (App.), 214 P.3d 1082 (2009).

Section 707-730(1)(b) and subsection (1)(b), as applied to private consensual acts between two persons, including minors, did not violate minor's right to privacy as the State has at least a significant interest in regulating the sexual activities of children under the age of fourteen; in addition, there is no fundamental personal privacy right for minors under the age of fourteen to engage in sexual activities with other children under the age of fourteen; this applies to young boys, as well as to young girls, and is not strictly dependent on an age differential between the children. 121 H. 92 (App.), 214 P.3d 1082 (2009).

State's exercise of prosecutorial discretion in the case was not constitutionally infirm where defendant failed to meet the burden of demonstrating that defendant was prosecuted based on an arbitrary classification; defendant was prosecuted under 707-730 and this section based on allegations that defendant was significantly older than child #1, had initiated the prohibited sexual activities with child #1 and child #2, and had engaged in multiple instances of prohibited sexual contact with more than one child. 121 H. 92 (App.), 214 P.3d 1082 (2009).

 

 

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