REPORT TITLE:
Child Protection


DESCRIPTION:
Creates new penalties for child abuse. (SD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        273
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 1999                                S.D. 1
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 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
 

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

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

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

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

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

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

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

 
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 1                707, robbery, felonious assault, child abuse in
 
 2                the first degree, child abuse in the second
 
 3                degree, burglary, or kidnapping; and
 
 4           (b)  The defendant, in the course of committing or
 
 5                attempting to commit the crime, inflicts serious
 
 6                or substantial bodily injury upon a person who is:
 
 7                (i)  Sixty years of age or older;
 
 8               (ii)  Blind, a paraplegic, or a quadriplegic; or
 
 9              (iii)  [Eight] Twelve years of age or younger; and
 
10           (c)  Such disability is known or reasonably should be
 
11                known to the defendant."
 
12      SECTION 5.  Section 706-662.2, Hawaii Revised Statutes, is
 
13 amended to read as follows:
 
14      "706-660.2  Sentence of imprisonment for offenses against
 
15 children, elder persons, or handicapped persons.  Notwithstanding
 
16 section 706-669, a person who, in the course of committing or
 
17 attempting to commit a felony, causes the death or inflicts
 
18 serious or substantial bodily injury upon a person who is:
 
19      (1)  Sixty years of age or older;
 
20      (2)  Blind, a paraplegic, or a quadriplegic; or
 
21      (3)  [Eight]Twelve years of age or younger;
 
22 and such disability is known or reasonably should be known to the
 
23 defendant, shall, if not subjected to an extended term of
 

 
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 1 imprisonment pursuant to section 706-662, be sentenced to a
 
 2 mandatory minimum term of imprisonment without possibility of
 
 3 parole as follows:
 
 4      (1)  For murder in the second degree--fifteen years;
 
 5      (2)  For a class A felony--six years, eight months;
 
 6      (3)  For a class B felony--three years, four months;
 
 7      (4)  For a class C felony--one year, eight months."
 
 8      SECTION 6.  Section 709-903.5, Hawaii Revised Statutes, is
 
 9 amended by amending subsection (1) to read as follows:
 
10      "(1)  Except as in subsection (2), a person commits the
 
11 offense of endangering the welfare of a minor in the first degree
 
12 if, having care or custody of a minor, the person intentionally
 
13 [or], knowingly, or recklessly allows another person to inflict
 
14 serious or substantial bodily injury on the minor."
 
15      SECTION 7.  Section 709-904, Hawaii Revised Statutes, is
 
16 amended to read as follows:
 
17      "709-904  Endangering the welfare of a minor in the second
 
18 degree.  [(1)  Except as provided in section 709-903.5(2), a
 
19 person commits the offense of endangering the welfare of a minor
 
20 in the second degree if, having care or custody of a minor, the
 
21 person recklessly allows another person to inflict serious or
 
22 substantial bodily injury on the minor. 
 
23      (2)] (1)  A person commits the offense of endangering the
 

 
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 1 welfare of a minor in the second degree if, being a parent,
 
 2 guardian, or other person whether or not charged with the care or
 
 3 custody of a minor, the person knowingly endangers the minor's
 
 4 physical or mental welfare by violating or interfering with any
 
 5 legal duty of care or protection owed such minor. 
 
 6      [(3)] (2)  Endangering the welfare of a minor is a
 
 7 misdemeanor."
 
 8      SECTION 8.  Statutory material to be repealed is bracketed.
 
 9 New statutory material is underscored.
 
10      SECTION 9.  This Act shall take effect upon its approval.