§702-203  Penal liability based on an
omission.  Penal liability may not be based on an omission unaccompanied by
action unless:



(1)  The omission is expressly made a sufficient basis
for penal liability by the law defining the offense; or



(2)  A duty to perform the omitted act is otherwise
imposed by law. [L 1972, c 9, pt of §1]



 



COMMENTARY ON §702-203



 



  Penal liability based on an omission unaccompanied by action
is fraught with dangers unless it is limited, as this section does, to those
failures to perform a duty imposed by law--civil or penal.  A voluntary
omission under such circumstances will not alone suffice to establish penal
liability, other elements will have to be identified and established according
to the definition of, and other laws relating to, the offense charged.



  Previous Hawaii law recognized a limitation more severe than
that contained in this section.  Liability predicated on omission only resulted
from failing to do what a penal law commanded.[1]  Such a limitation does not
seem wise.  Few duties of affirmative action are imposed by penal law.  It
should be sufficient for penal liability that a defendant, with the requisite
culpability, failed to discharge a duty of affirmative performance imposed by
civil law.



  The Code is in accord with decisions in other states.  For
example, the owner of premises owes a duty to business invitees to maintain the
premises in a reasonably safe condition.  An owner who recklessly failed to
provide adequate fire exits was held guilty of manslaughter when the omission
caused the death of the owner's invitees.[2]  Similarly, a parent, under civil
law, owes a duty to provide food and shelter for his or her infant child.  The
intentional or reckless omission to perform the duty may result in a conviction
for murder or manslaughter, respectively, if the omission causes the death of
the child.[3]



 



Case Notes



 



  Section contemplates possibility of penal liability based on
an omission accompanied by, i.e., in combination with, action, as well as an
omission unaccompanied by action.  73 H. 236, 831 P.2d 924.



  Where evidence that child was a victim of battered child
syndrome was relevant to show that child's death was not an accident, but the
result of an intentional, knowing or reckless criminal act, giving rise to a
duty on defendant's part to obtain medical care for child pursuant to §663-1.6,
trial court did not err in admitting expert testimony that child was a victim
of battered child syndrome.  101 H. 332, 68 P.3d 606.



  In describing the elements of an offense based on the
omission to perform a duty imposed by law under paragraph (2), the circuit
court shall indicate in its instructions that the harm was caused
"by" the omission to perform the relevant duty, although the question
of whether the failure to do so constitutes reversible error necessarily
depends, in any particular case, on an evaluation of the instructions as a
whole.  77 H. 216 (App.), 883 P.2d 638.



  Where jury could have reasonably found that defendant care
home operator knew of the risks of infection and failed to provide resident
with the care that was within defendant's capabilities, which care would have
prevented the progression of the infection that caused resident's death, and
defendant had a duty to take resident to follow-up appointment with doctor and
consciously disregarded a substantial and unjustifiable risk that failure to
perform this duty would cause resident's death, sufficient evidence to support
jury's finding that State proved manslaughter by omission, including the requisite
state of mind.  104 H. 387 (App.), 90 P.3d 1256.



 



__________



§702-203 Commentary:



 



1.  H.R.S. §701-1.



 



2.  Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902
(1944).



 



3.  See Biddle v. Commonwealth, 206 Va. 14, 141 S.E.2d 710
(1965).