§604-10.5  Power to enjoin and temporarily
restrain harassment.  (a)  For the purposes of this section:



"Course of conduct" means a pattern
of conduct composed of a series of acts over any period of time evidencing a
continuity of purpose.



"Harassment" means:



(1)  Physical harm, bodily injury, assault, or the
threat of imminent physical harm, bodily injury, or assault; or



(2)  An intentional or knowing course of conduct
directed at an individual that seriously alarms or disturbs consistently or
continually bothers the individual, and that serves no legitimate purpose;
provided that such course of conduct would cause a reasonable person to suffer
emotional distress.



(b)  The district courts shall have power to
enjoin or prohibit or temporarily restrain harassment.



(c)  Any person who has been subjected to
harassment may petition the district court of the district in which the
petitioner resides for a temporary restraining order and an injunction from
further harassment.



(d)  A petition for relief from harassment
shall be in writing and shall allege that a past act or acts of harassment may
have occurred, or that threats of harassment make it probable that acts of
harassment may be imminent; and shall be accompanied by an affidavit made under
oath or statement made under penalty of perjury stating the specific facts and
circumstances from which relief is sought.



(e)  Upon petition to a district court under
this section, the court may temporarily restrain the person or persons named in
the petition from harassing the petitioner upon a determination that there is
probable cause to believe that a past act or acts of harassment have occurred
or that a threat or threats of harassment may be imminent.  The court may issue
an ex parte temporary restraining order either in writing or orally; provided
that oral orders shall be reduced to writing by the close of the next court day
following oral issuance.



(f)  A temporary restraining order that is
granted under this section shall remain in effect at the discretion of the
court for a period not to exceed ninety days from the date the order is
granted.  A hearing on the petition to enjoin harassment shall be held within
fifteen days after the temporary restraining order is granted.  In the event
that service of the temporary restraining order has not been effected before
the date of the hearing on the petition to enjoin, the court may set a new date
for the hearing; provided that the new date shall not exceed ninety days from
the date the temporary restraining order was granted.



The parties named in the petition may file or
give oral responses explaining, excusing, justifying, or denying the alleged
act or acts of harassment.  The court shall receive all evidence that is
relevant at the hearing, and may make independent inquiry.



If the court finds by clear and convincing
evidence that harassment as defined in paragraph (1) of that definition exists,
it may enjoin for no more than three years further harassment of the
petitioner, or that harassment as defined in paragraph (2) of that definition
exists, it shall enjoin for no more than three years further harassment of the
petitioner; provided that this paragraph shall not prohibit the court from
issuing other injunctions against the named parties even if the time to which the
injunction applies exceeds a total of three years.



Any order issued under this section shall be
served upon the respondent.  For the purposes of this section,
"served" shall mean actual personal service, service by certified
mail, or proof that the respondent was present at the hearing in which the
court orally issued the injunction.



Where service of a restraining order or
injunction has been made or where the respondent is deemed to have received
notice of a restraining order or injunction order, any knowing or intentional
violation of the restraining order or injunction order shall subject the
respondent to the provisions in subsection (h).



Any order issued shall be transmitted to the
chief of police of the county in which the order is issued by way of regular
mail, facsimile transmission, or other similar means of transmission.



(g)  The court may grant the prevailing party
in an action brought under this section, costs and fees, including attorney's
fees.



(h)  A knowing or intentional violation of a
restraining order or injunction issued pursuant to this section is a
misdemeanor.  The court shall sentence a violator to appropriate counseling and
shall sentence a person convicted under this section as follows:



(1)  For a violation of an injunction or restraining
order that occurs after a conviction for a violation of the same injunction or
restraining order, a violator shall be sentenced to a mandatory minimum jail
sentence of not less than forty-eight hours; and



(2)  For any subsequent violation that occurs after a
second conviction for violation of the same injunction or restraining order,
the person shall be sentenced to a mandatory minimum jail sentence of not less
than thirty days.



The court may suspend any jail sentence, except
for the mandatory sentences under paragraphs (1) and (2), upon appropriate
conditions, such as that the defendant remain alcohol and drug-free,
conviction-free, or complete court-ordered assessments or counseling.  The
court may suspend the mandatory sentences under paragraphs (1) and (2) where
the violation of the injunction or restraining order does not involve violence
or the threat of violence.  Nothing in this section shall be construed as
limiting the discretion of the judge to impose additional sanctions authorized in
sentencing for a misdemeanor offense.



(i)  Nothing in this section shall be construed
to prohibit constitutionally protected activity. [L 1986, c 69, §1; am L 1992,
c 291, §1; am L 1993, c 215, §3; am L 1996, c 245, §1; am L 1999, c 143, §1]



 



Cross References



 



  Harassment offenses, see §§711-1106 and 711-1106.5.



 



Rules of Court



 



  Classification of proceedings, see RDC rule 1.



 



Case Notes



 



  Because only the prosecuting attorney is vested with the
authority to enforce the criminal provisions of subsection (h), respondent, as
a private party, could not have brought an enforcement action under subsection
(h).  92 H. 614, 994 P.2d 546.



  Subsection (g) does not provide a statutory basis to grant a
prevailing party an award of attorney's fees in a civil contempt proceeding to
enforce an injunction issued pursuant to this section.  92 H. 614, 994 P.2d
546.



  Although complainant was a minor at the time complainant's
parents obtained the injunction on behalf of themselves and complainant, an
injunction issued under this section remains effective until it expires or is
dissolved or modified by court order; thus, though complainant had reached the
age of majority, complainant was still under the protection of the injunction. 
97 H. 505, 40 P.3d 907.



  Default is not procedurally available when a respondent is
ready to introduce evidence regarding the issuance of a temporary restraining
order or an injunction, or to controvert allegations of harassment under this
section.  101 H. 167, 64 P.3d 948.



  Trial court erred in granting continuance on hearing on
harassment petition beyond fifteen-day period as section requires hearing on
the merits to be held within fifteen days of the filing of the petition;
however, no prejudice to petitioner as court extended temporary restraining
order prohibiting respondent from harassing petitioner for the period of the
continuance.  91 H. 131 (App.), 980 P.2d 1005.



  As subsection (h) provides that there can be no criminal
conviction unless "[a] knowing or intentional violation of a restraining
order or injunction" has occurred, harassment under subsection (a)(1) is
not turned into a "strict liability" offense; thus, no violation of
due process under subsection (a)(1).  92 H. 312 (App.), 990 P.2d 1194.



  No equal protection violation for disparate treatment of
persons enjoined under subsections (a)(1) and (a)(2) as those enjoined under
subsection (a)(1) are not subject to a suspect classification vis-a-vis those
enjoined under subsection (a)(2) and the legislature could reasonably omit a
state-of-mind element in the more perilous cases under subsection (a)(1) but
require an intentional or knowing course of conduct in subsection (a)(2)
cases.  92 H. 312 (App.), 990 P.2d 1194.



  Subsection (a)(1) not unconstitutionally overbroad as it imposes
no criminal liability nor places any burden on the reduced punishment or
complete defense provisions of the penal code.  92 H. 312 (App.), 990 P.2d
1194.



  Harassment under paragraph (a)(2) is conduct that involves
systematic and continuous intimidation that stops short of assault or threats
and cannot be controlled effectively by resort to criminal processes and
penalties.  92 H. 330 (App.), 991 P.2d 840.



  Where trial court did not apply clear and convincing standard
of proof on complainant as required by this section, applied a subjective
rather than objective reasonable person standard in evaluating whether
defendant's conduct caused complainant emotional distress, and deprived
defendant of right to due process under U.S. and Hawaii constitutions, court
erred by denying defendant's motion for reconsideration of injunction order. 
92 H. 330 (App.), 991 P.2d 840.



  It was not unreasonable for trial court to find that
defendant flipping the bird and showing his middle finger to complainant and
uttering profanities constituted "contact" which was prohibited by
the restraining order; thus, defendant was properly convicted under subsection
(h).  110 H. 116 (App.), 129 P.3d 1144.