THE SENATE

S.B. NO.

2289

TWENTY-NINTH LEGISLATURE, 2018

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to animal SEXUAL abuse.

 

 

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

 


SECTION 1. The legislature finds that forty-five states have laws prohibiting animal sexual abuse, which is also termed bestiality. Animal sexual abuse is the sexual molestation of an animal by a human. While Hawaii has effective animal cruelty laws, animal sexual abuse is not adequately addressed because the cruelty laws require proof of specific actions such as torture and other actions that cause bodily injury or death to the animal. Many acts of animal sexual abuse are discovered after the incident occurs and the requisite evidence cannot be obtained. Further, in some instances, the abuse may not result in physical injury.

The legislature further finds that animal sexual abuse is the single strongest predictor of increased risk for committing child sexual abuse. In a study of over forty-four thousand adult male sex offenders, researchers concluded that animal sexual abuse is the number one risk factor and the strongest predictor of increased risk for sexual abuse of a child. Some studies have found high rates of sexual assault of animals in the backgrounds of serial sexual homicide perpetrators. This is one reason why bestiality and other forms of animal cruelty are now tracked by the Federal Bureau of Investigation as Group A offenses in the National Incident-Based Reporting System, in the same category as rape and murder. By establishing animal sexual abuse as a separate crime, law enforcement will be better able to identify potentially dangerous sexual predators in their community.

Finally, animals, like adults and children, are trafficked, sold, and traded for sex and frequently used in the pornography industry. Trafficking animals for sex is not currently prohibited in Hawaii.

The purpose of this Act is to prohibit animal sexual abuse in the State.

SECTION 2. Chapter 711, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"711- Sexual assault of an animal. (1) A person commits the offense of sexual assault of an animal if the person knowingly:

(a) Subjects an animal to sexual contact;

(b) Possesses, sells, transfers, purchases, or otherwise obtains an animal with the intent to subject the animal to sexual contact;

(c) Organizes, promotes, conducts, or participates as an observer in an act where an animal is subjected to sexual contact;

(d) Causes, coerces, aids, or abets another person to subject an animal to sexual contact;

(e) Permits sexual contact with an animal to be conducted on any premises under the person's charge or control;

(f) Advertises, solicits, offers, or accepts the offer of an animal with the intent that it be subjected to sexual contact in the State; or

(g) Subjects an animal to sexual contact in the presence of a minor.

(2) This section shall not apply to the following practices:

(a) Veterinary medicine;

(b) Artificial insemination of animals for the purpose of procreation;

(c) Animal husbandry; or

(d) Conformation judging.

(3) Sexual assault of animals is a class C felony; provided that if the offense subjected a minor to sexual contact with an animal or was committed in the presence of a minor as defined in section 706-606.4, the offense is a class B felony.

(4) Each violation of this section shall constitute a separate offense.

(5) Upon conviction, guilty plea, or plea of nolo contendere for any violation of this section, the defendant shall be:

(a) Ordered to surrender or forfeit the animal whose sexual assault was the basis of the conviction or plea to the custody of a duly incorporated humane society or duly incorporated society for the prevention of cruelty to animals for the time and under the conditions ordered by the court;

(b) Ordered to surrender or forfeit any other animals under the possession, custody, or control of the defendant to the custody of a duly incorporated humane society or duly incorporated society for the prevention of cruelty to animals for the time and under the conditions ordered by the court; provided that there is substantial evidence that the animals are being abused in violation of this section;

(c) Prohibited from:

(i) Harboring, owning, possessing, or exercising control over any animal;

(ii) Residing in any household where animals are present; or

(iii) Engaging in an occupation, whether paid or unpaid, or participating in a volunteer position at any establishment where animals are present,

for any length of time that the court deems reasonable for the protection of all animals, but not less than five years after the person's release from imprisonment or court supervision;

(d) Ordered to reimburse the duly incorporated agency for reasonable costs incurred to care, feed, house, and medically treat any animal sexually assaulted under this section;

(e) Ordered to attend an appropriate treatment program or obtain psychiatric or psychological counseling, at the defendant's expense; and

(f) Ordered to make restitution to the owner of the animal, including reimbursement for any expenses incurred for medical treatment or rehabilitation; provided that the defendant is not the owner of the animal whose sexual assault was the basis of the conviction or plea.

(6) Prosecution under this section does not preclude prosecution under any other law. Nothing in this section is intended to affect any civil remedies available for a violation of this section.

(7) As used in this section, "sexual contact" means:

(a) Any act between a person and an animal involving contact between the sex organs or anus of one and the mouth, anus, or sex organs of the other;

(b) Any touching or fondling by a person of the sex organs or anus of an animal;

(c) Any transfer or transmission of semen by the person upon any part of the animal; or

(d) Any insertion, however slight, of any part of a person's body, or any object manipulated by the person, into the vaginal or anal opening of an animal, or the insertion of any part of the animal's body into the vaginal or anal opening of the person."

SECTION 3. Section 706-606.4, Hawaii Revised Statutes, is amended by amending the definition of "offense" to read as follows:

""Offense" means a violation of section 707-710 (assault in the first degree), 707-711 (assault in the second degree), 707‑730 (sexual assault in the first degree), 707-731 (sexual assault in the second degree), 707-732 (sexual assault in the third degree), [or] 709-906 (abuse of family or household members)[.], or 711- (sexual assault of an animal)."

SECTION 4. Section 711-1109.1, Hawaii Revised Statutes, is amended to read as follows:

"711-1109.1 Authority to enter premises; notice of impoundment of animal; damage resulting from entry. (1) If there is probable cause to believe that [a pet] an animal [or equine animal] is being subjected to treatment in violation of section 711-1108.5, 711-1109, 711-1109.3, [or] 711-1109.35, or 711- , as applicable, a law enforcement officer, after obtaining a search warrant, or in any other manner authorized by law, may enter the premises where the [pet] animal [or equine animal] is located to provide the [pet] animal [or equine animal] with food, water, and emergency medical treatment or to impound the [pet] animal [or equine animal]. If after reasonable effort, the owner or person having custody of the [pet] animal [or equine animal] cannot be found and notified of the impoundment, an impoundment notice shall be conspicuously posted on the premises and within seventy-two hours after posting, the notice shall be sent by certified mail to the address, if any, from which the [pet] animal [or equine animal] was removed.

(2) A law enforcement officer is not liable for any damage resulting from an entry under subsection (1), unless the damage resulted from intentional or reckless behavior on behalf of the law enforcement officer.

(3) A court may order [a pet] an animal [or equine animal] impounded under subsection (1) to be held at a duly incorporated humane society or duly incorporated society for the prevention of cruelty to animals. A facility receiving the [pet] animal [or equine animal] shall provide adequate food and water and may provide veterinary care.

(4) For purposes of this section, "law enforcement officer" shall have the same meaning as [[]in[]] section 710‑1000."

SECTION 5. Section 711-1109.2, Hawaii Revised Statutes, is amended to read as follows:

"711-1109.2 Forfeiture of animal prior to filing of or final disposition of criminal charges. (1) If any [pet] animal [or equine animal] is impounded pursuant to section 711-1109.1, prior to filing of, or final disposition of a criminal charge under section 711-1108.5, 711-1109, 711-1109.3, [or] 711‑1109.35, or 711- , as applicable, against the [pet] animal's [or equine animal's] owner, any duly incorporated humane society or duly incorporated society for the prevention of cruelty to animals that is holding the [pet] animal [or equine animal] may file a petition in the court that would have jurisdiction over the criminal case when the criminal charge is filed, if the petition is filed prior to the filing of the criminal charge, or in the criminal action requesting that the court issue an order for forfeiture of the [pet] animal [or equine animal] to the county or to the duly incorporated humane society or duly incorporated society for the prevention of cruelty to animals prior to the filing of the criminal charge that arises from the impoundment or final disposition of the criminal charge. The petitioner shall serve a true copy of the petition upon the owner or custodian of the impounded [pet] animal [or equine animal], when a petition is filed prior to the filing of the criminal charge, or the defendant, in the criminal action, and the prosecuting attorney.

(2) Upon receipt of a petition pursuant to subsection (1), the court shall set a hearing on the petition. The hearing shall be conducted within fourteen days after the filing of the petition, or as soon as practicable.

(3) At a hearing conducted pursuant to subsection (2), the petitioner shall have the burden of establishing probable cause that the [pet] animal [or equine animal] was subjected to a violation of section 711-1108.5, 711-1109, 711-1109.3, [or] 711‑1109.35, or 711- , as applicable. If the court finds that probable cause exists, the court shall order immediate forfeiture of the [pet] animal [or equine animal] to the petitioner, unless the owner or custodian of the impounded [pet] animal [or equine animal], when a petition is filed prior to the filing of the criminal charge, or the defendant, in the criminal action, within seventy-two hours of the hearing:

(a) Posts a security deposit or bond with the court clerk in an amount determined by the court to be sufficient to repay all reasonable costs incurred, and anticipated to be incurred, by the petitioner in caring for the [pet] animal [or equine animal] from the date of initial impoundment to the date of trial; or

(b) Demonstrates to the court that proper alternative care has been arranged for the [pet] animal [or equine animal].

Notwithstanding [subsection (3)(a),] paragraph (a), a court may waive, for good cause shown, the requirement that the owner or custodian of the impounded [pet] animal [or equine animal], when a petition is filed prior to the filing of the criminal charge, or the defendant, in the criminal action, post a security deposit or bond.

(4) If a security deposit or bond has been posted in accordance with subsection (3)(a), the petitioner may draw from the security deposit or bond the actual reasonable costs incurred by the petitioner in caring for the [pet] animal [or equine animal] until the date of final disposition of the criminal action. If the trial is continued to a later date, any order of continuance shall require the owner or custodian of the impounded [pet] animal [or equine animal], when a petition is filed prior to the filing of the criminal charge, or the defendant, in the criminal action, to post an additional security deposit or bond in an amount determined by the court that shall be sufficient to repay all additional reasonable costs anticipated to be incurred by the petitioner in caring for the [pet] animal [or equine animal] until the date of final disposition of the criminal action, and the petitioner may draw from the additional security deposit or bond as necessary.

(5) No [pet] animal [or equine animal] may be destroyed by a petitioner under this section prior to final disposition of a criminal charge under section 711-1108.5, 711-1109, 711-1109.3, [or] 711-1109.35, or 711- , as applicable, against the [pet] animal's [or equine animal's] owner, except in the event that the [pet] animal [or equine animal] is a danger to itself or others, or so severely injured that there is no reasonable probability that its life can be saved.

(6) Forfeiture of [a pet] an animal [or equine animal] under this section shall not be subject to the provisions of chapter 712A.

(7) In addition to any reasonable costs incurred under subsection (4) by the petitioner in the caring for the [pet] animal [or equine animal], the court may award reasonable attorney's fees and court costs to the petitioner following the conviction of the defendant.

(8) As used in this section, ["pet animal or equine animal"] "animal" includes any offspring from the [pet] animal [or equine animal] that was pregnant at the time of the rescue and born during the impoundment of the [pet] animal [or equine animal].

(9) An acquittal or dismissal in a criminal proceeding shall not preclude civil proceedings under this chapter."

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon approval.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Penal Code; Animals; Sexual Assault

 

Description:

Establishes the offense of sexual assault of an animal. Provides for impoundment and forfeiture of a sexually assaulted animal.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.