Report Title:

Sexual Penetration; Definition

Description:

Clarifies that the definition of "sexual penetration" includes the acts of cunnilingus and anilingus whether or not actual penetration has occurred.

HOUSE OF REPRESENTATIVES

H.B. NO.

2254

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to chapter 707, Hawaii revised statutes.

 

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

SECTION 1. The purpose of this Act is to clarify the legislature's intent that the definition of "sexual penetration" includes the acts of cunnilingus and anilingus whether or not actual penetration has occurred. This clarification is necessitated by the Hawaii supreme court's opinion in State v. Mueller, 102 Haw. 391, 76 P.3d 943 (2003) which held that the plain language of the definition of "sexual penetration" required that there be proof of actual penetration for the acts of cunnilingus or anilingus to be encompassed under the definition. The decision in Mueller overruled a previous Hawaii supreme court decision, State v. Rulona, 71 Haw. 127, 785 P.2d 615 (1990) which had held that it was clear that the act of cunnilingus is an act of "sexual penetration" under the statutory definition of "sexual penetration", irrespective of whether there was proof of actual penetration.

The legislature finds that this clarification is needed since it is usually difficult for the sexual assault victim to know whether penetration, however slight occurred during the act of cunnilingus. Moreover, the failure to provide such a clarification would reduce sexual assaults involving acts of cunnilingus or anilingus on children under the age of consent, from sexual assault in the first degree, a class A felony, to sexual assault in the third degree, a class C felony. If reduced to a sexual assault in the third degree, sexual assaults involving cunnilingus or anilingus would be punished with the same severity as the touching of clothed intimate parts of the minor. The legislature finds that this Act is necessary to prevent such an occurrence.

SECTION 2. Section 707-700, Hawaii Revised Statutes, is amended by amending the definitions of "sexual contact" and "sexual penetration" to read as follows:

""Sexual contact" means any touching, other than acts of "sexual penetration", of the sexual or other intimate parts of a person not married to the actor, or of the sexual or other intimate parts of the actor by the person, whether directly or through the clothing or other material intended to cover the sexual or other intimate parts.

"Sexual penetration" means [vaginal]:

(1) Vaginal intercourse, anal intercourse, fellatio, [cunnilingus, anilingus,] deviate sexual intercourse, or any intrusion of any part of a person's body or of any object into the genital or anal opening of another person's body; it occurs upon any penetration, however slight, but emission is not required[.]; or

(2) Cunnilingus or anilingus, whether or not actual penetration has occurred.

For purposes of this chapter, each act of sexual penetration shall constitute a separate offense."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

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