§702-233  Consent; general.  In any
prosecution, the victim's consent to the conduct alleged, or to the result
thereof, is a defense if the consent negatives an element of the offense or
precludes the infliction of the harm or evil sought to be prevented by the law
defining the offense. [L 1972, c 9, pt of §1]



 



COMMENTARY ON §702-233



 



  This section states the general view that the victim's
consent to the defendant's conduct, or to the result of the defendant's
conduct, is a defense if it negatives an element of the offense (e.g., consent
to sexual intercourse on charge of rape) or precludes the harm or evil sought
to be prevented by the law defining the offense (e.g., consent by the victim to
allow the defendant to demonstrate a wrestling hold or maneuver upon the
victim).  It is obvious that this general principle should not be extended to
all types of evils or harms and therefore this section is intended to be read
in conjunction with §702-234 (consent to bodily injury) and §702-235
(ineffective consent).



  Although this general principle has not been previously
codified in Hawaii, it has been impliedly recognized.[1]



 



Case Notes



 



  Based on the facts and the charged offenses in the case, the
alternative theories of absence of consent and ineffective consent did not
represent separate crimes; rather, they were alternative means of proving the
attendant circumstance element of a single crime.  96 H. 161, 29 P.3d 351.



  In sexual assault case, jury instruction as to ineffective
consent prejudicially affected defendant's rights to due process because (1)
jury was instructed that it could convict defendant based on the absence of
consent under this section or any of the four grounds of ineffective consent
under §702-235, (2) there was a reasonable possibility that the verdict was
based on at least one of the four grounds of ineffective consent, and (3) there
was legally insufficient evidence to support any of the four grounds of
ineffective consent presented to the jury.  96 H. 161, 29 P.3d 351.



 



__________



§702-233 Commentary:



 



1.  Territory v. Lee, 29 Haw. 30 (1926) (where a bank teller
mistakenly paid out too much money on a check, it was held that the teller's
mistake was not "consent" to the taking which would afford a defense
to a charge of larceny).