§702-210  Requirement of wilfulness
satisfied by acting knowingly.  A requirement that an offense be committed
wilfully is satisfied if a person acts knowingly with respect to the elements
of the offense, unless a purpose to impose further requirements appears. [L
1972, c 9, pt of §1]



 



COMMENTARY ON §702-210



 



  Many regulatory penal offenses appear in statutes other than
the Penal Code.  These regulatory statutes often employ different words to
designate the state of mind or culpability requirement needed to establish
various regulatory offenses.  In this respect the penal statutes dealing with
regulatory offenses are much the same as those appearing in the previous Title
on crimes.[1]  While no attempt will be made to correlate the present
culpability requirements of regulatory offenses with the four states of mind
which the Code recognizes as sufficient to establish culpability with respect
to the elements of an offense, an exception is made for the word
"wilful" or "wilfully."



  That term is used pervasively in penal statutes to describe
the requisite culpability or state of mind.  However, the phrase has been
defined differently in similar contexts.  For example, it has been held that
the felony of wilfully failing to account for and to pay over tax monies
requires "bad purpose and evil motive," whereas, the misdemeanor of
wilfully failing to file an income tax return requires that the defendant acted
"with bad purpose or without grounds for believing that one's act is
lawful or without reasonable cause, or capriciously or with careless disregard
whether one has the right to so act."[2]  With respect to the same
misdemeanor, it has been said that "[m]ere voluntary and purposeful, as
distinguished from accidental, omission to make timely return might meet the
test of wilfulness."[3]



  In a Hawaii case, involving a disputed labor contract, the
court, in discussing the penal remedies afforded to the employer by then
existing law, said that a wilful absence was "one without sufficient legal
excuse"[4]--a rather transparent definition at best.



  To eliminate distinctions of this type, the Code equates
acting wilfully with acting knowingly.  This equation reaches a result in
accord with most decisions.  The Code recognizes, however, that in some
situations the courts have construed "wilful" to impose an additional
requirement of culpability.  In such situations the "perception of such
a... [legislative] purpose [to impose additional culpability requirements]
normally derives, of course, from judicial appraisal of the consequences of the
enactment if its scope is not limited by construction."[5]  To allow for
situations of this kind, the final clause provides that the section is not
applicable if a purpose to impose further culpability requirements appears.



 



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§702-210 Commentary:



 



1.  Cf. Commentary on §702-204.



 



2.  Abdul v. United States, 254 F.2d 292, 294 (1958); Martin v.
United States, 317 F.2d 753 (1963).



 



3.  Spies v. United States, 317 U.S. 492, 498, 63 S.Ct. 364,
367, 87 L.Ed. 418 (1943).



 



4.  Rickard v. Couto, 5 Haw. 507, 513 (1885).



 



5.  M.P.C., Tentative Draft No. 4, comments at 130 (1955).  See
Screws v. United States, 325 U.S. 91 (1945) (holding that a statute making it
an offense to wilfully deprive a person of rights secured by the Constitution
required, when applied to rights secured through the due process clause, a
specific intent to deprive the person of a right which has been made specific
by the express terms of Constitution, the laws of the United States, or by a
decision interpreting them), and United States v. Murdock, 290 U.S. 389 (1933)
(holding that a tax statute making it an offense to wilfully fail to supply
information to the government regarding income tax returns did not make
criminal the bona fide, albeit intentional and erroneous, refusal to answer on
the ground of self-incrimination).