§702-200  Requirement of voluntary act or
voluntary omission.  (1)  In any prosecution it is a defense that the
conduct alleged does not include a voluntary act or the voluntary omission to
perform an act of which the defendant is physically capable.



(2)  Where the defense provided in subsection
(1) is based on a physical or mental disease, disorder, or defect which
precludes or impairs a voluntary act or a voluntary omission, the defense shall
be treated exclusively according to chapter 704, except that a defense based on
intoxication which is pathological or not self-induced which precludes or
impairs a voluntary act or a voluntary omission shall be treated exclusively
according to this chapter. [L 1972, c 9, pt of §1; am L 1986, c 325, §1]



 



Cross References



 



  Physical or mental disease, disorder, or defect excluding
penal responsibility, see §704-400 et seq.



 



COMMENTARY ON §702-200



 



  The effect of this section is to require, as a minimum basis
for the imposition of penal liability, conduct which includes a voluntary act
or voluntary omission.  In most penal cases the issue of whether the
defendant's conduct includes a voluntary act or a voluntary omission will not
be separately litigated.  The voluntariness of relevant acts or omissions will
be evident.  The Code, by making the issue of involuntariness a defense,
accordingly puts the ultimate burden on the defendant to inject that issue into
the case.  The burden, of course, can be met by the prosecutor if he raises the
issue.  Once the question of voluntariness has been raised, the prosecution has
the burden of proving that issue beyond a reasonable doubt.



  A voluntary act or omission will not, of course, be
sufficient alone to impose penal liability.  If, however, the issue of
voluntariness is raised, such an act or omission must be established if penal
liability is to obtain.  Statutory law cannot hope to command or deter acts
over which the accused has no control.  Moreover, any attempt at moral
condemnation of involuntary acts or omissions through the use of the penal
sanction would ultimately disserve the integrity of the penal law.



  The direct effect of this section is to preclude "status
crimes"--the most obvious of which is vagrancy.  Since the impoverished
condition of the accused would not, without more, constitute or include a
voluntary act or omission, conviction would be precluded.



  The formulation of this section is intended to permit
liability in those cases where liability is not predicated on a voluntary act
or omission but on a course of conduct initiated by a voluntary act.  Thus, an
automobile driver who suddenly loses consciousness and kills a pedestrian would
not have performed a voluntary act giving rise to liability.  However, if the
driver had disregarded a known risk that consciousness might be lost and had
commenced or continued driving, that included a voluntary act might be
sufficient to impose penal liability.



  The prior Hawaii statutory law[1] is similar to this section
but its logical implication with regard to status crimes has not been examined
as carefully as might have been hoped.  While being a vagrant was unlawful,
being a leper was not.[2]



 



__________



§702-200 Commentary:



 



1.  H.R.S. §701-1 ("doing what a penal law forbids to be
done, or omitting to do what it commands").



 



2.  Segregation of Lepers, 5 Haw. 162 (1884).