Report Title:

Abuse Family/Household Member

 

Description:

Creates 3 classifications of offense of abuse of family or household member: class C felony, misdemeanor, and petty misdemeanor.

 

HOUSE OF REPRESENTATIVES

H.B. NO.

770

TWENTY-FIRST LEGISLATURE, 2001

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to abuse of family or household members.

 

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

SECTION 1. Chapter 709, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART  . ABUSE OF FAMILY OR HOUSEHOLD MEMBER

709-A Definitions. For the purposes of this part:

"Dangerous instrument" has the same meaning as provided in section 707-700.

"Family or household member" means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit.

"Serious bodily injury" and "substantial bodily injury" have the same meanings as provided in section 707-700.

"Terroristic threatening" has the same meaning as provided in section 707-715(1).

709-B Abuse of family or household member in the first degree. (1) A person commits the offense of abuse of family or household member in the first degree if:

(a) The person:

(i) Intentionally or knowingly causes substantial bodily injury;

    (ii) Recklessly causes serious bodily injury; or

   (iii) Intentionally or knowingly causes bodily injury, with a dangerous instrument, to a family or household member;

(b) The person commits terroristic threatening by threatening a family or household member:

(i) By word or conduct on more than one occasion for the same or a similar purpose; or

    (ii) Using a dangerous instrument; or

(c) The person commits an offense of abuse of family or household member in the second degree subsequent to having any combination of two or more prior convictions, in this State, any other state, or federal jurisdiction that are comparable to:

(i) An offense of abuse of family or household member in the first degree under this section;

    (ii) An offense of abuse of family or household member in the second degree under section 709-C; or

   (iii) An offense of abuse of family or household member under section 709-906 as it was in effect on June 30, 2001.

(2) Abuse of family or household member in the first degree is a class C felony.

(3) Any person violating this section shall be sentenced to a mandatory minimum jail term of ninety days.

(4) Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.

709-C Abuse of family or household member in the second degree. (1) A person commits the offense of abuse of family or household member in the second degree if:

(a) The person:

(i) Intentionally, knowingly, or recklessly causes bodily injury to a family or household member; or

    (ii) Negligently causes bodily injury, with a dangerous instrument, to a family or household member;

(b) The person commits terroristic threatening by threatening a family or household member other than as provided under section 709-B(1)(b); or

(c) The person, with intent to harass, annoy, or alarm a family or household member, or in reckless disregard of the risk thereof, pursues or conducts surveillance upon the family or household member:

(i) Without legitimate purpose;

    (ii) On more than one occasion for the same or a similar purpose; and

   (iii) Under circumstances that would cause the family or household member to reasonably believe the person intends to cause either bodily injury to the family or household member or another or damage to the property of the family or household member or another.

(2) Except as provided in section 709-B(1)(c), abuse of family or household member in the second degree is a misdemeanor.

(3) Any person violating this section shall be sentenced as follows:

(a) For the first offense or any offense not preceded within:

(i) A five year period by a conviction for abuse of family or household member under section 709-B(1)(c); or

    (ii) A two year period of conviction for abuse of a family or household member under this section, the person shall serve a minimum jail term of forty-eight hours; and the person shall serve a minimum jail term of forty-eight hours; and

(b) For a second offense, the person shall serve a minimum jail term of thirty days.

(4) Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.

709-D Abuse of family or household member in the third degree. (1) A person commits the offense of abuse of family or household member in the third degree if the person:

(a) With intent to harass, annoy, or alarm a family or household member:

(i) Strikes, shoves, kicks, or otherwise touches the family or household member in an offensive manner or subjects the family or household member to offensive physical contact;

    (ii) Insults, taunts, or challenges a family or household member in a manner likely to provoke an immediate violent response or that would cause the family or household member to reasonably believe that the person intends to cause either bodily injury to the family or household member or another or damage to the property of the family or household member or another;

   (iii) Repeatedly makes telephone calls, facsimile, or electronic mail transmissions to a family or household member without purpose of legitimate communication;

    (iv) Repeatedly makes a communication to a family or household member anonymously or at an extremely inconvenient hour;

(v) Repeatedly makes communications, after being advised by the family or household member to whom the communication is directed that further communication is unwelcome; or

    (vi) Makes a communication to a family or household member using offensively coarse language that would cause the family or household member to reasonably believe that the person intends to cause either bodily injury to the family or household member or another or damage to the property of the family or household member or another;

(b) With intent to harass, annoy, or alarm a family or household member, or in reckless disregard of the risk thereof, pursues or conducts surveillance upon the family or household member:

(i) Without legitimate purpose; and

    (ii) Under circumstances that would cause the family or household member to reasonably believe the person intends to cause either bodily injury to the family or household member or another or damage to the property of the family or household member or another.

(c) Intentionally impedes or hinders a family or household member from placing a call to 911, emergency medical services, or the appropriate federal, state or county law enforcement authorities.

(2) Abuse of family or household member in the third degree is a petty misdemeanor.

709-E Authorized actions of law enforcement officers with respect to abuse of family or household member. (1) Any police officer, with or without a warrant, may arrest a person if the officer has reasonable grounds to believe that the person is abusing, or has abused, a family or household member and that the person arrested is guilty of an offense of abuse of a family or household member under this part.

(2) The police, in investigating any complaint of abuse of a family or household member, upon request, may transport the abused person to a hospital or safe shelter.

(3) Any police officer who has reasonable grounds to believe either that abuse has been inflicted by one person upon a family or household member, regardless of whether the abuse occurred in the officer's presence or that abuse may be imminent, may take the following further course of action, with or without a warrant:

(a) The police officer may make reasonable inquiry of the family or household member upon whom the officer believes abuse either has been inflicted or may be imminent;

(b) The police officer may make reasonable inquiry of any other witnesses that may be present;

(c) If the police officer has reasonable grounds to believe that there is probable danger of imminent abuse being inflicted by one person upon a family or household member, the police officer lawfully may order the person to leave the premises for a period of separation of forty-eight hours, during which time the person shall not initiate any contact, either by telephone or in person, with the family or household member; provided that the person is allowed to enter the premises with police escort to collect any necessary personal effects;

(d) Where the police officer makes the finding referred to in paragraph (c) and the incident occurs after 12:00 p.m. on any Friday or on any Saturday, Sunday, or legal holiday, the order to leave the premises and to initiate no further contact shall commence immediately and be in full force, but the twenty-four hour period shall be enlarged and extended until 4:30 p.m. on the first day following the weekend or legal holiday;

(e) The police officer shall give a written warning citation to any person ordered to leave premises pursuant to this section. The written warning citation shall state the date, time, and location of the warning and the penalties for violating the warning. The police officer shall retain a copy of the warning citation and attach it to the written report required to be submitted in all cases. The police officer shall give a third copy of the warning citation to the remaining family or household member;

(f) If the person ordered to leave the premises refuses to comply with the order or returns to the premises before the expiration of the period of separation, or if the person so ordered initiates any contact with the remaining family or household member, the person shall be placed under arrest for the purpose of preventing abuse to the family or household member; and

(g) The police officer may seize all firearms and ammunition that the police officer has reasonable grounds to believe were used or threatened to be used in the commission of an offense under this part.

709-F Violation of a lawful order to leave the premises, penalty. (1) Any violation of or refusal to comply with the lawful order of a police officer to leave the premises under section 709-E(3) is a misdemeanor.

(2) Any person violating this section shall be sentenced as follows:

(a) For the first offense the person shall serve a minimum jail sentence of forty-eight hours; and

(b) For a second offense and any other subsequent offense that occurs within three years of the previous offense, the person shall be termed a repeat offender and serve a minimum jail sentence of thirty days.

(3) Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.

709-G Mandatory domestic violence intervention programs. (1) Whenever a court sentences a person pursuant to this part, it also shall require that the offender undergo any available domestic violence intervention programs ordered by the court. However, the court may suspend any portion of a jail sentence, except for any mandatory sentences, upon the condition that the defendant remains arrest-free and conviction-free and complete court-ordered intervention.

(2) When a person is ordered by the court to undergo any domestic violence intervention, that person shall provide adequate proof of compliance with the court's order. The court shall order a subsequent hearing at which the person is required to make an appearance, on a date certain, to determine whether the person has completed the ordered domestic violence intervention; provided that the court may waive the subsequent hearing and appearance if a court officer has established that the person has completed the intervention ordered by the court.

709-H Right of victim of abuse of family or household member; assistance of prosecuting attorney. (1) A family or household member who has been abused by another person may petition the family court, with the assistance of the prosecuting attorney of the applicable county, for a penal summons or arrest warrant to issue forthwith or may file a criminal complaint through the prosecuting attorney of the applicable county. In such instance, the respondent shall be taken into custody and brought before the family court at the first possible opportunity. The court may dismiss the petition or hold the respondent in custody, subject to bail. If the petition is not dismissed, a hearing shall be set.

(2) It shall be the duty of the prosecuting attorney of the applicable county to assist any family or household member under this part in the preparation of the penal summons or arrest warrant.

(3) This part shall not preclude the abused family or household member from pursuing any other remedy under law or in equity.

709-I Good faith immunity. Any police officer who arrests a person pursuant to this part shall not be subject to any civil or criminal liability; provided that the police officer acts in good faith, upon reasonable belief, and does not exercise unreasonable force in effecting the arrest.

709-J Interpretation. This part shall not operate as a bar against prosecution under any other section of this Code in lieu of prosecution for abuse of a family or household member under this part."

SECTION 2. Section 706-606.5, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) Notwithstanding section 706-669 and any other law to the contrary, any person convicted of murder in the second degree, any class A felony, any class B felony, or any of the following class C felonies: [section] sections 188-23 relating to possession or use of explosives, electrofishing devices, and poisonous substances in state waters; [section] 707-703 relating to negligent homicide in the first degree; 707-711 relating to assault in the second degree; 707-713 relating to reckless endangering in the first degree; 707-716 relating to terroristic threatening in the first degree; 707-721 relating to unlawful imprisonment in the first degree; 707-732 relating to sexual assault or rape in the third degree; 707-735 relating to sodomy in the third degree; 707-736 relating to sexual abuse in the first degree; 707-751 relating to promoting child abuse in the second degree; 707-766 relating to extortion in the second degree; 708-811 relating to burglary in the second degree; 708-821 relating to criminal property damage in the second degree; 708-831 relating to theft in the first degree [as amended by Act 68, Session Laws of Hawaii 1981]; 708-831 relating to theft in the second degree; 708-835.5 relating to theft of livestock; 708-836 relating to unauthorized control of propelled vehicle; 708-852 relating to forgery in the second degree; 708-854 relating to criminal possession of a forgery device; 708-875 relating to trademark counterfeiting; 709-B relating to abuse of family or household member in the first degree; 710-1071 relating to intimidating a witness; 711-1103 relating to riot; 712-1203 relating to promoting prostitution in the second degree; 712-1221 relating to gambling in the first degree; 712-1224 relating to possession of gambling records in the first degree; 712-1243 relating to promoting a dangerous drug in the third degree; 712-1247 relating to promoting a detrimental drug in the first degree; 134-7 relating to ownership or possession of firearms or ammunition by persons convicted of certain crimes; 134-8 relating to ownership, etc., of prohibited weapons; 134-9 relating to permits to carry, or who is convicted of attempting to commit murder in the second degree, any class A felony, any class B felony, or any of the class C felony offenses enumerated above and who has a prior conviction or prior convictions for the following felonies, including an attempt to commit the same: murder, murder in the first or second degree, a class A felony, a class B felony, any of the class C felony offenses enumerated above, or any felony conviction of another jurisdiction shall be sentenced to a mandatory minimum period of imprisonment without possibility of parole during such period as follows:

(a) One prior felony conviction:

(i) Where the instant conviction is for murder in the second degree or attempted murder in the second degree--ten years;

    (ii) Where the instant conviction is for a class A felony--six years, eight months;

   (iii) Where the instant conviction is for a class B felony--three years, four months;

    (iv) Where the instant conviction is for a class C felony offense enumerated above--one year, eight months;

(b) Two prior felony convictions:

(i) Where the instant conviction is for murder in the second degree or attempted murder in the second degree--twenty years;

    (ii) Where the instant conviction is for a class A felony--thirteen years, four months;

   (iii) Where the instant conviction is for a class B felony--six years, eight months;

    (iv) Where the instant conviction is for a class C felony offense enumerated above--three years, four months;

(c) Three or more prior felony convictions:

(i) Where the instant conviction is for murder in the second degree or attempted murder in the second degree--thirty years;

    (ii) Where the instant conviction is for a class A felony--twenty years;

   (iii) Where the instant conviction is for a class B felony--ten years;

    (iv) Where the instant conviction is for a class C felony offense enumerated above--five years."

SECTION 3. Section 709-906, Hawaii Revised Statutes, is repealed.

["709-906 Abuse of family or household members; penalty. (1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer under subsection (4). The police, in investigating any complaint of abuse of a family or household member, upon request, may transport the abused person to a hospital or safe shelter.

For the purposes of this section, "family or household member" means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit.

(2) Any police officer, with or without a warrant, may arrest a person if the officer has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member and that the person arrested is guilty thereof.

(3) A police officer who has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member shall prepare a written report.

(4) Any police officer, with or without a warrant, may take the following course of action where the officer has reasonable grounds to believe that there was physical abuse or harm inflicted by one person upon a family or household member, regardless of whether the physical abuse or harm occurred in the officer's presence:

(a) The police officer may make reasonable inquiry of the family or household member upon whom the officer believes physical abuse or harm has been inflicted and other witnesses as there may be;

(b) Where the police officer has reasonable grounds to believe that there is probable danger of further physical abuse or harm being inflicted by one person upon a family or household member, the police officer lawfully may order the person to leave the premises for a period of separation of twenty-four hours, during which time the person shall not initiate any contact, either by telephone or in person, with the family or household member; provided that the person is allowed to enter the premises with police escort to collect any necessary personal effects;

(c) Where the police officer makes the finding referred to in paragraph (b) and the incident occurs after 12:00 p.m. on any Friday, or on any Saturday, Sunday, or legal holiday, the order to leave the premises and to initiate no further contact shall commence immediately and be in full force, but the twenty-four hour period shall be enlarged and extended until 4:30 p.m. on the first day following the weekend or legal holiday;

(d) All persons who are ordered to leave as stated above shall be given a written warning citation stating the date, time, and location of the warning and stating the penalties for violating the warning. A copy of the warning citation shall be retained by the police officer and attached to a written report which shall be submitted in all cases. A third copy of the warning citation shall be given to the abused person;

(e) If the person so ordered refuses to comply with the order to leave the premises or returns to the premises before the expiration of the period of separation, or if the person so ordered initiates any contact with the abused person, the person shall be placed under arrest for the purpose of preventing further physical abuse or harm to the family or household member; and

(f) The police officer may seize all firearms and ammunition that the police officer has reasonable grounds to believe were used or threatened to be used in the commission of an offense under this section.

(5) Abuse of a family or household member and refusal to comply with the lawful order of a police officer under subsection (4) are misdemeanors and the person shall be sentenced as follows:

(a) For the first offense the person shall serve a minimum jail sentence of forty-eight hours; and

(b) For a second offense and any other subsequent offense that occurs within one year of the previous offense, the person shall be termed a "repeat offender" and serve a minimum jail sentence of thirty days.

Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.

(6) Whenever a court sentences a person pursuant to subsection (5), it also shall require that the offender undergo any available domestic violence intervention programs ordered by the court. However, the court may suspend any portion of a jail sentence, except for the mandatory sentences under subsection (5)(a) and (b), upon the condition that the defendant remain arrest-free and conviction-free or complete court-ordered intervention.

(7) For any subsequent offense occurring within two years after a second misdemeanor conviction, the person shall be charged with a class C felony.

(8) Any police officer who arrests a person pursuant to this section shall not be subject to any civil or criminal liability; provided that the police officer acts in good faith, upon reasonable belief, and does not exercise unreasonable force in effecting the arrest.

(9) The family or household member who has been physically abused or harmed by another person may petition the family court, with the assistance of the prosecuting attorney of the applicable county, for a penal summons or arrest warrant to issue forthwith or may file a criminal complaint through the prosecuting attorney of the applicable county.

(10) The respondent shall be taken into custody and brought before the family court at the first possible opportunity. The court may dismiss the petition or hold the respondent in custody, subject to bail. Where the petition is not dismissed, a hearing shall be set.

(11) This section shall not operate as a bar against prosecution under any other section of this Code in lieu of prosecution for abuse of a family or household member.

(12) It shall be the duty of the prosecuting attorney of the applicable county to assist any victim under this section in the preparation of the penal summons or arrest warrant.

(13) This section shall not preclude the physically abused or harmed family or household member from pursuing any other remedy under law or in equity.

(14) When a person is ordered by the court to undergo any domestic violence intervention, that person shall provide adequate proof of compliance with the court's order. The court shall order a subsequent hearing at which the person is required to make an appearance, on a date certain, to determine whether the person has completed the ordered domestic violence intervention. The court may waive the subsequent hearing and appearance where a court officer has established that the person has completed the intervention ordered by the court."]

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 5. In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect on July 1, 2001.

INTRODUCED BY:

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