§702-234  Consent to bodily injury.  In
any prosecution involving conduct which causes or threatens bodily injury,
consent to such conduct or to the infliction of such injury is a defense if:



(1)  The conduct and the injury are reasonably
foreseeable hazards of joint participation in a lawful athletic event or
competitive sport; or



(2)  The consent establishes a justification for the
conduct under chapter 703. [L 1972, c 9, pt of §1]



 



COMMENTARY ON §702-234



 



  This section specifies the types of cases in which consent to
conduct which threatens or causes physical injury will constitute a defense.



  Where the conduct and injury are the reasonably foreseeable
hazards of joint participation in a lawful athletic contest or competitive
sport, the injury to one participant, whether it be deliberate (boxing) or
fortuitous (basketball or football), should not import penal liability to the
other party.



  Subsection (2) permits effective consent when it is given in
the context of a situation which would constitute a defense of justification
under Chapter 703.  For example, a parent may intrust the care of a child to
another person, thus, under some circumstances, consenting to the use of
corporal punishment, which would be sufficient to establish justification for
the use of moderate physical force.  Again, an adult might submit to certain
medical procedures which necessarily entail severe bodily injury.



  Consent to bodily harm has not been dealt with in previous
Hawaii penal law.[1]



 



SUPPLEMENTAL COMMENTARY ON §702-234



 



  Section 234 in the Proposed Draft of the Code provided for a
defense, in addition to the above text, where "the bodily injury consented
to or threatened by the conduct consented to is not serious."  The
Legislature, in enacting the Code in 1972, rejected this defense.  Conference
Committee Report No. 2 (1972) stated:  "The Committee finds that the law
should not permit the defense of consent to have such a broad application...
and that the subsection should not permit, by consent, the type of conduct which
would result in bodily injury and disruption of our social fabric."



 



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§702-234 Commentary:



 



1.  But see Burrows v. Hawaiian Trust Co., 49 Haw. 351, 360,
417 P.2d 816, 821 (1966) ("Consent is a defense to assault and battery
cases as well as to others, unless consent is against the policy of the
law.").