§702-235  Ineffective consent.  Unless
otherwise provided by this Code or by the law defining the offense, consent
does not constitute a defense if:



(1)  It is given by a person who is legally
incompetent to authorize the conduct alleged; or



(2)  It is given by a person who by reason of youth,
mental disease, disorder, or defect, or intoxication is manifestly unable or
known by the defendant to be unable to make a reasonable judgment as to the
nature or harmfulness of the conduct alleged; or



(3)  It is given by a person whose improvident consent
is sought to be prevented by the law defining the offense; or



(4)  It is induced by force, duress or deception. [L
1972, c 9, pt of §1]



 



COMMENTARY ON §702-235



 



  This section deprives the defendant of a defense based on
consent in those situations where the victim's apparent consent is actually
meaningless.



  Subsection (1) deprives consent of effectiveness if it is
given by a person who is not authorized to give it.  Thus, for example, consent
by an unauthorized person to the taking of another's property is not effective
consent.



  Subsection (2) relates to persons who are manifestly unable,
or known to the defendant to be unable, to make a reasonable judgment
concerning the conduct consented to because of immaturity, abnormal mental
capacity, or intoxication.



  Subsection (3) covers those cases where the law
"deliberately ignores the actual attitude on the part of the 'victim' in
order to protect members of the class of which he or she is a member."[1] 
For example, sexual intercourse with a female below a certain age might be
prohibited.



  Subsection (4) reiterates in this context the general and
pervasive principle that assent induced by force, duress, or deception is not
legally effective consent.



  It should be noted that although the Code deprives the
consent of its effectiveness in the situations stated in this section, the Code
does not thereby impose absolute liability.  Facts which deprive consent of its
effectiveness negative a defense, thereby making them elements of the offense. 
With respect to each element the defendant must act with a culpable state of
mind.  Thus, for example, sexual intercourse with a female who because of her
youth cannot give effective consent does not impose automatic penal liability
upon the defendant.  It must be proven that with respect to the attendant
circumstance of the girl's age the defendant acted culpably.  This is so
whether that attendant circumstance is specified in the definition of the
offense or specified in a separate statute depriving her consent of
effectiveness.  At the very least it would have to be proven that the defendant
was reckless (or, if specially provided, negligent) with respect to the girl's
age, i.e., that he ignored a known (or, in the case of negligence, foreseeable)
risk that the girl was below the statutory age permitting effective consent.



  In Hawaii case law, cases of ineffective consent are found in
relation to various sex offenses, where the consent of the female is deprived
of effectiveness because of her immaturity;[2] furthermore, liability with
respect to the female's age is absolute.[3]  This section of the Code, as well
as the definitions of sex offenses, changes this result.



 



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 §702-233 or any of the four grounds of ineffective consent under
this section, (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.



  "Consent" under this section applies to
"mentally incapacitated" provision in section 707-700.  5 H. App.
404, 696 P.2d 846.



  An imprisoned person's consent to "sexual
penetration" by an employee of a state correctional facility is
ineffective and thus is not a defense to a charge brought under
§707-731(1)(c).  86 H. 426 (App.), 949 P.2d 1047.



 



__________



§702-235 Commentary:



 



1.  Prop. Mich. Rev. Cr. Code §330, comments at 41 (1967).



 



2.  Territory v. Delos Santos, 42 Haw. 102 (1957).



 



3.  Territory v. Guillermo, 43 Haw. 43 (1958).