REPORT TITLE:
Child Protection


DESCRIPTION:
Creates new penalties for child abuse. (HB273 CD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        273
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 1999                                S.D. 2
STATE OF HAWAII                                            C.D. 1
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO CHILDREN.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The legislature finds that children are Hawaii's
 
 2 most precious asset.  To protect them from the injustice of abuse
 
 3 and neglect, the legislature formed a legislative roundtable to
 
 4 suggest statutes, guidelines, rules, regulations, and other
 
 5 changes to improve Hawaii's child protection system.  From these
 
 6 discussions, the legislature found, among other things, that a
 
 7 key factor in preventing child abuse is through deterrence,
 
 8 namely, harsher criminal penalties for child abusers.
 
 9      The purpose of this Act is to toughen Hawaii's criminal laws
 
10 for perpetrators of child abuse.
 
11      SECTION 2.  Chapter 707, Hawaii Revised Statutes, is amended
 
12 by adding three new sections to be appropriately designated and
 
13 to read as follows:
 
14      "707-    Child abuse in the first degree.  (1)  A person
 
15 commits the offense of child abuse in the first degree if the
 
16 person intentionally or knowingly causes serious bodily injury to
 
17 a minor twelve years of age or younger.
 
18      (2)  Child abuse in the first degree is a class A felony.
 
19      707-     Child abuse in the second degree.  (1)  A person
 
20 commits the offense of child abuse in the second degree if:
 

 
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 1           (a)  The person intentionally or knowingly causes
 
 2                substantial bodily injury to a minor twelve years
 
 3                of age or younger; or
 
 4           (b)  The person recklessly causes serious bodily injury
 
 5                to a minor twelve years of age or younger.
 
 6      (2)  Child abuse in the second degree is a class B felony.
 
 7      707-     Child abuse in the third degree.  (1)  A person
 
 8 commits the offense of child abuse in the third degree if the
 
 9 person recklessly causes substantial bodily injury to a minor
 
10 twelve years of age or younger.
 
11      (2)  Child abuse in the third degree is a class C felony."
 
12      SECTION 3.  Section 703-309, Hawaii Revised Statutes, is
 
13 amended to read as follows:
 
14      "703-309  Use of force by persons with special
 
15 responsibility for care, discipline, or safety of others.  The
 
16 use of force upon or toward the person of another is justifiable
 
17 under the following circumstances:
 
18      (1)  The actor is the parent or guardian or other person
 
19           similarly responsible for the general care and
 
20           supervision of a minor, or a person acting at the
 
21           request of the parent, guardian, or other responsible
 
22           person, and:
 

 
 
 
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 1           (a)  The force is employed with due regard for the age
 
 2                [and], size, and condition of the minor and is
 
 3                reasonably related to the purpose of safeguarding
 
 4                or promoting the welfare of the minor, including
 
 5                the prevention or punishment of the minor's
 
 6                misconduct; and
 
 7           (b)  The force used is not designed to cause or known
 
 8                to create a risk of causing substantial bodily
 
 9                injury, disfigurement, extreme pain or mental
 
10                distress, or neurological damage[.];
 
11      (2)  The actor is a teacher or a person otherwise entrusted
 
12           with the care or supervision for a special purpose of a
 
13           minor, and:
 
14           (a)  The actor believes that the force used is
 
15                necessary to further that special purpose,
 
16                including maintenance of reasonable discipline in
 
17                a school, class, or other group, and that the use
 
18                of force is consistent with the welfare of the
 
19                minor; and
 
20           (b)  The degree of force, if it had been used by the
 
21                parent or guardian of the minor, would not be
 
22                unjustifiable under paragraph (1)(b)[.];
 

 
 
 
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 1      (3)  The actor is the guardian or other person similarly
 
 2           responsible for the general care and supervision of an
 
 3           incompetent person, and:
 
 4           (a)  The force is employed with due regard for the age
 
 5                and size of the incompetent person and is
 
 6                reasonably related to the purpose of safeguarding
 
 7                or promoting the welfare of the incompetent
 
 8                person, including the prevention of the
 
 9                incompetent person's misconduct[,] or, when such
 
10                incompetent person is in a hospital or other
 
11                institution for the incompetent person's care and
 
12                custody, for the maintenance of reasonable
 
13                discipline in the institution; and
 
14           (b)  The force used is not designed to cause or known
 
15                to create a risk of causing substantial bodily
 
16                injury, disfigurement, extreme pain or mental
 
17                distress, or neurological damage[.];
 
18      (4)  The actor is a doctor or other therapist or a person
 
19           assisting the doctor or therapist at the doctor's or
 
20           therapist's direction, and:
 
21           (a)  The force is used for the purpose of administering
 
22                a recognized form of treatment which the actor
 

 
 
 
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 1                believes to be adapted to promoting the physical
 
 2                or mental health of the patient; and
 
 3           (b)  The treatment is administered with the consent of
 
 4                the patient[,] or, if the patient is a minor or an
 
 5                incompetent person, with the consent of the
 
 6                minor's or incompetent person's parent or guardian
 
 7                or other person legally competent to consent in
 
 8                the minor's or incompetent person's behalf, or the
 
 9                treatment is administered in an emergency when the
 
10                actor believes that no one competent to consent
 
11                can be consulted and that a reasonable person,
 
12                wishing to safeguard the welfare of the patient,
 
13                would consent[.];
 
14      (5)  The actor is a warden or other authorized official of a
 
15           correctional institution, and:
 
16           (a)  The actor believes that the force used is
 
17                necessary for the purpose of enforcing the lawful
 
18                rules or procedures of the institution; and
 
19           (b)  The nature or degree of force used is not
 
20                forbidden by other provisions of the law governing
 
21                the conduct of correctional institutions; and
 
22           (c)  If deadly force is used, its use is otherwise
 
23                justifiable under this chapter[.];
 

 
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 1      (6)  The actor is a person responsible for the safety of a
 
 2           vessel or an aircraft or a person acting at the
 
 3           direction of the person responsible for the safety of a
 
 4           vessel or an aircraft, and:
 
 5           (a)  The actor believes that the force used is
 
 6                necessary to prevent interference with the
 
 7                operation of the vessel or aircraft or obstruction
 
 8                of the execution of a lawful order, unless the
 
 9                actor's belief in the lawfulness of the order is
 
10                erroneous and the actor's error is due to
 
11                ignorance or mistake as to the law defining
 
12                authority; and
 
13           (b)  If deadly force is used, its use is otherwise
 
14                justifiable under this chapter[.]; and
 
15      (7)  The actor is a person who is authorized or required by
 
16           law to maintain order or decorum in a vehicle, train,
 
17           or other carrier, or in a place where others are
 
18           assembled, and:
 
19           (a)  The actor believes that the force used is
 
20                necessary for that purpose; and
 
21           (b)  The force used is not designed to cause or known
 
22                to create a substantial risk of causing death,
 
23                bodily injury, or extreme mental distress."
 

 
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 1      SECTION 4.  Section 706-662, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "706-662  Criteria for extended terms of imprisonment.  A
 
 4 convicted defendant may be subject to an extended term of
 
 5 imprisonment under section 706-661, if the convicted defendant
 
 6 satisfies one or more of the following criteria:
 
 7      (1)  The defendant is a persistent offender whose
 
 8           imprisonment for an extended term is necessary for
 
 9           protection of the public.  The court shall not make
 
10           this finding unless the defendant has previously been
 
11           convicted of two felonies committed at different times
 
12           when the defendant was eighteen years of age or
 
13           older[.];
 
14      (2)  The defendant is a professional criminal whose
 
15           imprisonment for an extended term is necessary for
 
16           protection of the public.  The court shall not make
 
17           this finding unless:
 
18           (a)  The circumstances of the crime show that the
 
19                defendant has knowingly engaged in criminal
 
20                activity as a major source of livelihood; or
 
21           (b)  The defendant has substantial income or resources
 
22                not explained to be derived from a source other
 
23                than criminal activity[.];
 

 
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 1      (3)  The defendant is a dangerous person whose imprisonment
 
 2           for an extended term is necessary for protection of the
 
 3           public.  The court shall not make this finding unless
 
 4           the defendant has been subjected to a psychiatric or
 
 5           psychological evaluation that documents a significant
 
 6           history of dangerousness to others resulting in
 
 7           criminally violent conduct, and this history makes the
 
 8           defendant a serious danger to others.  Nothing in this
 
 9           section precludes the introduction of victim-related
 
10           data in order to establish dangerousness in accord with
 
11           the Hawaii rules of evidence[.];
 
12      (4)  The defendant is a multiple offender whose criminal
 
13           actions were so extensive that a sentence of
 
14           imprisonment for an extended term is necessary for
 
15           protection of the public.  The court shall not make
 
16           this finding unless:
 
17           (a)  The defendant is being sentenced for two or more
 
18                felonies or is already under sentence of
 
19                imprisonment for felony; or
 
20           (b)  The maximum terms of imprisonment authorized for
 
21                each of the defendant's crimes, if made to run
 
22                consecutively would equal or exceed in length the
 
23                maximum of the extended term imposed, or would
 

 
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 1                equal or exceed forty years if the extended term
 
 2                imposed is for a class A felony[.]; or
 
 3      (5)  The defendant is an offender against the elder,
 
 4           handicapped, or minor under the age of eight whose
 
 5           imprisonment for an extended term is necessary for the
 
 6           protection of the public. The court shall not make this
 
 7           finding unless:
 
 8           (a)  The defendant attempts or commits any of the
 
 9                following crimes:  murder, manslaughter, a sexual
 
10                offense that constitutes a felony under chapter
 
11                707, robbery, felonious assault, child abuse in
 
12                the first degree, child abuse in the second
 
13                degree, child abuse in the third degree, burglary,
 
14                or kidnapping; and
 
15           (b)  The defendant, in the course of committing or
 
16                attempting to commit the crime, inflicts serious
 
17                or substantial bodily injury upon a person who is:
 
18                (i)  Sixty years of age or older;
 
19               (ii)  Blind, a paraplegic, or a quadriplegic; or
 
20              (iii)  Eight years of age or younger; and
 
21           (c)  Such disability is known or reasonably should be
 
22                known to the defendant."
 

 
 
 
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 1      SECTION 5.  Section 707-710, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "707-710  Assault in the first degree.  (1) A person
 
 4 commits the offense of assault in the first degree if the person
 
 5 intentionally or knowingly causes serious bodily injury to
 
 6 [another person.] a person thirteen years of age or older.
 
 7      (2)  Assault in the first degree is a class B felony."
 
 8      SECTION 6.  Section 707-711, Hawaii Revised Statutes, is
 
 9 amended to read as follows:
 
10      "707-711  Assault in the second degree.(1)  A person
 
11 commits the offense of assault in the second degree if:
 
12      (a)  The person intentionally or knowingly causes
 
13           substantial bodily injury to [another;] a person
 
14           thirteen years of age or older;
 
15      (b)  The person recklessly causes serious bodily injury to
 
16           [another person;] a person thirteen years of age or
 
17           older;
 
18      (c)  The person intentionally or knowingly causes bodily
 
19           injury to a correctional worker, as defined in section
 
20           710-1031(2), who is engaged in the performance of duty
 
21           or who is within a correctional facility;
 
22      (d)  The person intentionally or knowingly causes bodily
 
23           injury to another person with a dangerous instrument;
 
24           or
 

 
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 1      (e)  The person intentionally or knowingly causes bodily
 
 2           injury to an educational worker who is engaged in the
 
 3           performance of duty or who is within an educational
 
 4           facility.  For the purposes of this section,
 
 5           "educational worker" means any administrator,
 
 6           specialist, counselor, teacher, or employee of the
 
 7           department of education, or a person who is a volunteer
 
 8           in a school program, activity, or function that is
 
 9           established, sanctioned, or approved by the department
 
10           of education or a person hired by the department of
 
11           education on a contractual basis and engaged in
 
12           carrying out an educational function.
 
13      (2)  Assault in the second degree is a class C felony."
 
14      SECTION 7.  This Act does not affect the rights and duties
 
15 that matured, penalties that were incurred, and proceedings that
 
16 were begun, before its effective date.
 
17      SECTION 8.  Statutory material to be repealed is bracketed.
 
18 New statutory material is underscored.
 
19      SECTION 9.  This Act shall take effect upon its approval.