REPORT TITLE:
Child Protection


DESCRIPTION:
Toughens Hawaii's criminal laws for perpetrators of child abuse.
(HB273 HD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 1
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
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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 assets.  To protect them from the injustice of
 
 3 abuse and neglect, the legislature formed a legislative
 
 4 roundtable to suggest statutory, guideline, rule, regulation, or
 
 5 other changes to improve Hawaii's child protection system.  From
 
 6 these discussions, the legislature found, among other things,
 
 7 that a key factor to prevent 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 two new sections to be appropriately designated and to
 
13 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, knowingly, or recklessly causes serious
 
17 bodily injury to a minor fourteen 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 the
 

 
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 1 person intentionally, knowingly, or recklessly causes substantial
 
 2 bodily injury to a minor fourteen years of age or younger.
 
 3      (2)  Child abuse in the second degree is a class B felony."
 
 4      SECTION 3.  Section 703-309, Hawaii Revised Statutes, is
 
 5 amended to read as follows:
 
 6      "703-309  Use of force by persons with special
 
 7 responsibility for care, discipline, or safety of others.  The
 
 8 use of force upon or toward the person of another is justifiable
 
 9 under the following circumstances:
 
10      (1)  The actor is the parent or guardian or other person
 
11           similarly responsible for the general care and
 
12           supervision of a minor, or a person acting at the
 
13           request of the parent, guardian, or other responsible
 
14           person, and:
 
15           (a)  The force is employed with due regard for the age
 
16                [and], size, and condition of the minor and is
 
17                reasonably related to the purpose of safeguarding
 
18                or promoting the welfare of the minor, including
 
19                the prevention or punishment of the minor's
 
20                misconduct; and
 
21           (b)  The force used is not designed to cause or known
 
22                to create a risk of causing substantial bodily
 
23                injury, disfigurement, extreme pain or mental
 
24                distress, or neurological damage.
 

 
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 1      (2)  The actor is a teacher or a person otherwise entrusted
 
 2           with the care or supervision for a special purpose of a
 
 3           minor, and:
 
 4           (a)  The actor believes that the force used is
 
 5                necessary to further that special purpose,
 
 6                including maintenance of reasonable discipline in
 
 7                a school, class, or other group, and that the use
 
 8                of force is consistent with the welfare of the
 
 9                minor; and
 
10           (b)  The degree of force, if it had been used by the
 
11                parent or guardian of the minor, would not be
 
12                unjustifiable under paragraph (1)(b).
 
13      (3)  The actor is the guardian or other person similarly
 
14           responsible for the general care and supervision of an
 
15           incompetent person, and:
 
16           (a)  The force is employed with due regard for the age
 
17                and size of the incompetent person and is
 
18                reasonably related to the purpose of safeguarding
 
19                or promoting the welfare of the incompetent
 
20                person, including the prevention of the
 
21                incompetent person's misconduct, or, when such
 
22                incompetent person is in a hospital or other
 
23                institution for the incompetent person's care and
 

 
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 1                custody, for the maintenance of reasonable
 
 2                discipline in the institution; and
 
 3           (b)  The force used is not designed to cause or known
 
 4                to create a risk of causing substantial bodily
 
 5                injury, disfigurement, extreme pain or mental
 
 6                distress, or neurological damage.
 
 7      (4)  The actor is a doctor or other therapist or a person
 
 8           assisting the doctor or therapist at the doctor's or
 
 9           therapist's direction, and:
 
10           (a)  The force is used for the purpose of administering
 
11                a recognized form of treatment which the actor
 
12                believes to be adapted to promoting the physical
 
13                or mental health of the patient; and
 
14           (b)  The treatment is administered with the consent of
 
15                the patient, or, if the patient is a minor or an
 
16                incompetent person, with the consent of the
 
17                minor's or incompetent person's parent or guardian
 
18                or other person legally competent to consent in
 
19                the minor's or incompetent person's behalf, or the
 
20                treatment is administered in an emergency when the
 
21                actor believes that no one competent to consent
 
22                can be consulted and that a reasonable person,
 
23                wishing to safeguard the welfare of the patient,
 
24                would consent.
 

 
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 1      (5)  The actor is a warden or other authorized official of a
 
 2           correctional institution, and:
 
 3           (a)  The actor believes that the force used is
 
 4                necessary for the purpose of enforcing the lawful
 
 5                rules or procedures of the institution; and
 
 6           (b)  The nature or degree of force used is not
 
 7                forbidden by other provisions of the law governing
 
 8                the conduct of correctional institutions; and
 
 9           (c)  If deadly force is used, its use is otherwise
 
10                justifiable under this chapter.
 
11      (6)  The actor is a person responsible for the safety of a
 
12           vessel or an aircraft or a person acting at the
 
13           direction of the person responsible for the safety of a
 
14           vessel or an aircraft, and:
 
15           (a)  The actor believes that the force used is
 
16                necessary to prevent interference with the
 
17                operation of the vessel or aircraft or obstruction
 
18                of the execution of a lawful order, unless the
 
19                actor's belief in the lawfulness of the order is
 
20                erroneous and the actor's error is due to
 
21                ignorance or mistake as to the law defining
 
22                authority; and
 

 
 
 
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 1           (b)  If deadly force is used, its use is otherwise
 
 2                justifiable under this chapter.
 
 3      (7)  The actor is a person who is authorized or required by
 
 4           law to maintain order or decorum in a vehicle, train,
 
 5           or other carrier, or in a place where others are
 
 6           assembled, and:
 
 7           (a)  The actor believes that the force used is
 
 8                necessary for that purpose; and
 
 9           (b)  The force used is not designed to cause or known
 
10                to create a substantial risk of causing death,
 
11                bodily injury or extreme mental distress."
 
12      SECTION 4.  Section 706-662, Hawaii Revised Statutes, is
 
13 amended to read as follows:
 
14      "706-662  Criteria for extended terms of imprisonment.  A
 
15 convicted defendant may be subject to an extended term of
 
16 imprisonment under section 706-661, if the convicted defendant
 
17 satisfies one or more of the following criteria:
 
18      (1)  The defendant is a persistent offender whose
 
19           imprisonment for an extended term is necessary for
 
20           protection of the public.  The court shall not make
 
21           this finding unless the defendant has previously been
 
22           convicted of two felonies committed at different times
 
23           when the defendant was eighteen years of age or older.
 

 
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 1      (2)  The defendant is a professional criminal whose
 
 2           imprisonment for an extended term is necessary for
 
 3           protection of the public.  The court shall not make
 
 4           this finding unless:
 
 5           (a)  The circumstances of the crime show that the
 
 6                defendant has knowingly engaged in criminal
 
 7                activity as a major source of livelihood; or
 
 8           (b)  The defendant has substantial income or resources
 
 9                not explained to be derived from a source other
 
10                than criminal activity.
 
11      (3)  The defendant is a dangerous person whose imprisonment
 
12           for an extended term is necessary for protection of the
 
13           public.  The court shall not make this finding unless
 
14           the defendant has been subjected to a psychiatric or
 
15           psychological evaluation that documents a significant
 
16           history of dangerousness to others resulting in
 
17           criminally violent conduct, and this history makes the
 
18           defendant a serious danger to others.  Nothing in this
 
19           section precludes the introduction of victim-related
 
20           data in order to establish dangerousness in accord with
 
21           the Hawaii rules of evidence.
 
22      (4)  The defendant is a multiple offender whose criminal
 
23           actions were so extensive that a sentence of
 

 
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 1           imprisonment for an extended term is necessary for
 
 2           protection of the public.  The court shall not make
 
 3           this finding unless:
 
 4           (a)  The defendant is being sentenced for two or more
 
 5                felonies or is already under sentence of
 
 6                imprisonment for felony; or
 
 7           (b)  The maximum terms of imprisonment authorized for
 
 8                each of the defendant's crimes, if made to run
 
 9                consecutively would equal or exceed in length the
 
10                maximum of the extended term imposed, or would
 
11                equal or exceed forty years if the extended term
 
12                imposed is for a class A felony.
 
13      (5)  The defendant is an offender against the elder,
 
14           handicapped, or minor under the age of [eight whose
 
15           imprisonment for an extended term is necessary for the
 
16           protection of the public.] fourteen.  The court shall
 
17           not make this finding unless:
 
18           (a)  The defendant attempts or commits any of the
 
19                following crimes:  murder, manslaughter, a sexual
 
20                offense that constitutes a felony under chapter
 
21                707, robbery, felonious assault, child abuse in
 
22                the first degree, child abuse in the second
 
23                degree, burglary, or kidnapping; and
 

 
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 1           (b)  The defendant, in the course of committing or
 
 2                attempting to commit the crime, inflicts serious
 
 3                or substantial bodily injury upon a person who is:
 
 4                (i)  Sixty years of age or older;
 
 5               (ii)  Blind, a paraplegic, or a quadriplegic; or
 
 6              (iii)  [Eight]Fourteen years of age or younger; and
 
 7           (c)  Such disability is known or reasonably should be
 
 8                known to the defendant."
 
 9      SECTION 5.  Section 706-660.2, Hawaii Revised Statutes, is
 
10 amended to read as follows:
 
11      "706-660.2  Sentence of imprisonment for offenses against
 
12 children, elder persons, or handicapped persons.  Notwithstanding
 
13 section 706-669, a person who, in the course of committing or
 
14 attempting to commit a felony, causes the death or inflicts
 
15 serious or substantial bodily injury upon a person who is:
 
16      (1)  Sixty years of age or older;
 
17      (2)  Blind, a paraplegic, or a quadriplegic; or
 
18      (3)  [Eight]Fourteen years of age or younger;
 
19 and such disability is known or reasonably should be known to the
 
20 defendant, shall, if not subjected to an extended term of
 
21 imprisonment pursuant to section 706-662, be sentenced to a
 
22 mandatory minimum term of imprisonment without possibility of
 
23 parole as follows:
 

 
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 1      (1)  For murder in the second degree--fifteen years;
 
 2      (2)  For a class A felony--six years, eight months;
 
 3      (3)  For a class B felony--three years, four months;
 
 4      (4)  For a class C felony--one year, eight months."
 
 5      SECTION 6.  Section 709-903.5, Hawaii Revised Statutes, is
 
 6 amended by amending subsection (1) to read as follows:
 
 7      "(1)  Except as in subsection (2), a person commits the
 
 8 offense of endangering the welfare of a minor in the first degree
 
 9 if, having care or custody of a minor, the person intentionally
 
10 [or], knowingly, or recklessly allows another person to inflict
 
11 serious or substantial bodily injury on the minor."
 
12      SECTION 7.  Section 709-904, Hawaii Revised Statutes, is
 
13 amended to read as follows:
 
14      "709-904  Endangering the welfare of a minor in the second
 
15 degree.  [(1)  Except as provided in section 709-903.5(2), a
 
16 person commits the offense of endangering the welfare of a minor
 
17 in the second degree if, having care or custody of a minor, the
 
18 person recklessly allows another person to inflict serious or
 
19 substantial bodily injury on the minor. 
 
20      (2)] (1)  A person commits the offense of endangering the
 
21 welfare of a minor in the second degree if, being a parent,
 
22 guardian, or other person whether or not charged with the care or
 
23 custody of a minor, the person knowingly endangers the minor's
 

 
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 1 physical or mental welfare by violating or interfering with any
 
 2 legal duty of care or protection owed such minor. 
 
 3      [(3)] (2)  Endangering the welfare of a minor is a
 
 4 misdemeanor."
 
 5      SECTION 8.  Statutory material to be repealed is bracketed.
 
 6 New statutory material is underscored.
 
 7      SECTION 9.  This Act shall take effect upon its approval.