§703-309 - Use of force by persons with special responsibility for care, discipline, or safety of others.

§703-309 Use of force by persons with
special responsibility for care, discipline, or safety of others. The use
of force upon or toward the person of another is justifiable under the
following circumstances:

(1) The actor is the parent or guardian or other
person similarly responsible for the general care and supervision of a minor,
or a person acting at the request of the parent, guardian, or other responsible
person, and:

(a) The force is employed with due regard for
the age and size of the minor and is reasonably related to the purpose of
safeguarding or promoting the welfare of the minor, including the prevention or
punishment of the minor's misconduct; and

(b) The force used is not designed to cause
or known to create a risk of causing substantial bodily injury, disfigurement,
extreme pain or mental distress, or neurological damage.

(2) The actor is a principal, the principal's agent,
a teacher, or a person otherwise entrusted with the care or supervision for a
special purpose of a minor, and:

(a) The actor believes that the force used is
necessary to further that special purpose, including maintenance of reasonable
discipline in a school, class, other group, or at activities supervised by the
department of education held on or off school property and that the use of
force is consistent with the welfare of the minor; and

(b) The degree of force, if it had been used
by the parent or guardian of the minor, would not be unjustifiable under
paragraph (1)(b).

(3) The actor is the guardian or other person
similarly responsible for the general care and supervision of an incompetent
person, and:

(a) The force is employed with due regard for
the age and size of the incompetent person and is reasonably related to the
purpose of safeguarding or promoting the welfare of the incompetent person,
including the prevention of the incompetent person's misconduct, or, when such
incompetent person is in a hospital or other institution for the incompetent
person's care and custody, for the maintenance of reasonable discipline in the
institution; and

(b) The force used is not designed to cause
or known to create a risk of causing substantial bodily injury, disfigurement,
extreme pain or mental distress, or neurological damage.

(4) The actor is a doctor or other therapist or a
person assisting the doctor or therapist at the doctor's or therapist's
direction, and:

(a) The force is used for the purpose of
administering a recognized form of treatment which the actor believes to be
adapted to promoting the physical or mental health of the patient; and

(b) The treatment is administered with the
consent of the patient, or, if the patient is a minor or an incompetent person,
with the consent of the minor's or incompetent person's parent or guardian or
other person legally competent to consent in the minor's or incompetent
person's behalf, or the treatment is administered in an emergency when the
actor believes that no one competent to consent can be consulted and that a
reasonable person, wishing to safeguard the welfare of the patient, would
consent.

(5) The actor is a warden or other authorized
official of a correctional institution, and:

(a) The actor believes that the force used is
necessary for the purpose of enforcing the lawful rules or procedures of the
institution; and

(b) The nature or degree of force used is not
forbidden by other provisions of the law governing the conduct of correctional
institutions; and

(6) The actor is a person responsible for the safety
of a vessel or an aircraft or a person acting at the direction of the person
responsible for the safety of a vessel or an aircraft, and:

(a) The actor believes that the force used is
necessary to prevent interference with the operation of the vessel or aircraft
or obstruction of the execution of a lawful order, unless the actor's belief in
the lawfulness of the order is erroneous and the actor's error is due to
ignorance or mistake as to the law defining authority; and

(b) If deadly force is used, its use is
otherwise justifiable under this chapter.

(7) The actor is a person who is authorized or
required by law to maintain order or decorum in a vehicle, train, or other
carrier, or in a place where others are assembled, and:

(a) The actor believes that the force used is
necessary for that purpose; and

(b) The force used is not designed to cause
or known to create a substantial risk of causing death, bodily injury or
extreme mental distress. [L 1972, c 9, pt of §1; am L 1992, c 210, §1; am L
2001, c 94, §1]

COMMENTARY ON §703-309

Subsection (1) justifies the use of force against minors by a
parent or other person in loco parentis, subject to two limitations: (1) the
force must be employed for safeguarding or promoting the welfare of the minor,
and (2) it must not be designed to cause or known to create a substantial risk
of death, serious bodily injury, disfigurement, extreme pain or mental
distress, or gross degradation. Thus the subsection sets a fairly simple and
unexceptionable standard; the right of parents to use force to discipline their
children is recognized, subject to clear requirements not to cause permanent
injury.

Subsection (2) permits a teacher or other person entrusted
with care for a special purpose (e.g., a camp counsellor) to use such force as
believed necessary to further that purpose, including the maintenance of
discipline, subject to the limitations of subsection (1) relating to death and
injury. This subsection recognizes that a teacher will not ordinarily need to
have the full scope of parental authority, but will have certain special needs,
such as maintenance of class discipline, which are peculiar to the teaching
situation. The intent of the Code in allowing this limited justification is
not however, to encourage corporal punishment.

Subsection (3) justifies the use of force by a guardian
responsible for the care and supervision of an incompetent person, but only to
promote the welfare of the incompetent or to maintain discipline. Force may
not, therefore, be used as punishment, as distinct from prevention of
misconduct, except for the maintenance of institutional discipline. Force may
not cause death, serious bodily injury, or the like, nor may it cause
humiliation--a lesser amount of harm than countenanced for children in
subsection (1).

Subsection (4) permits the use of force by a doctor or other
therapist to administer a recognized form of treatment which the doctor or
other therapist believes to be adapted to promoting the physical or mental
health of the patient. Ordinarily such treatment would be administered with
consent, but it may be administered without consent in an emergency. Under the
wording of the section, if consent is in fact denied by the patient or a person
competent to give consent, the use of force would no longer be justified.

Subsection (5) justifies force used by a warden or other
authorized prison official to enforce prison rules and discipline. The force
used must not be in excess of that permitted by statutes relating to prisons,
and deadly force may be used only when justified under other sections of this
Code.

Subsection (6) permits the use of force by a person
responsible for the safety of a vessel or airplane to prevent interference with
its operation or obstruction of the execution of a lawful order (unless the
person is erroneous in the person's belief in the lawfulness of the order).
Deadly force may be used if justified under this Code.

Subsection (7) permits force by a person authorized by law to
maintain public order in public conveyances and public places. The person may
not use force creating a substantial risk of death, bodily injury, or extreme
mental distress.

The section is substantially in accord with preexisting
Hawaii law. Hawaii law permits parents "to chastise [their children]
moderately for their good."[1] Under prior law, any corporal punishment
was permitted if reasonable.[2] To the extent that Hawaii case law suggests
that the parents have uncontrolled discretion to discipline their children,[3]
the Code represents a change. Similarly, teachers have had authority under
Hawaii case and statutory law to use force to maintain discipline in the
schools.[4] The punishment must have been reasonable,[5] and the teachers' discretion
was considered less extensive than that of parents.[6] Prison officials under
prior Hawaii law were permitted to use force to maintain discipline in the
prisons;[7] and ship captains had the right to employ force to keep order on
their vessels.[8] In all the above situations, the Code states with greater
clarity than existing law when, for what purposes, and to what extent force may
be used by persons with special responsibility for the care, discipline, or
safety of others. Also, subsections (3), (4), and (7) represent additions to
Hawaii law.

SUPPLEMENTAL COMMENTARY ON §703-309

Act 210, Session Laws 1992, amended this section to clarify
the permitted level of force that a person responsible for the care of a minor,
or an incompetent person, may use. In determining whether the level of force
used is permitted, a court must consider the age and size of the recipient and
whether a reasonable relationship exists between the force used and a
legitimate purpose as specified in the statute. Conference Committee Report
No. 103.

Act 94, Session Laws 2001, amended this section to clarify
that the use of force upon another person is justified when the actor is a
principal or principal's agent, when necessary, during school events or at a
departmentally supervised function on or off school property. Current law
allowed the use of force by teachers or other persons entrusted with the care
or supervision for a special purpose of a minor, if the teacher or person
believed the force used was necessary to further the special purpose, including
maintenance of reasonable discipline. The legislature found it necessary that
school personnel be authorized to take reasonable, appropriate, and expeditious
action when confronted with potentially dangerous situations or serious
disciplinary situations, on campus and off-campus at authorized school
functions. School officials must be allowed to take immediate action to
preserve order and discipline without having to wait for the police to arrive.
Senate Standing Committee Report No. 1400.

Case Notes

Parent did not inflict serious pain when hitting child with
belt. 72 H. 241, 813 P.2d 1382.

Force used by defendant not reasonably related to protecting
minor's welfare where, according to testimony, spanking caused minor to be
unable to sit while in school classes. 81 H. 5, 911 P.2d 725.

Injuries inflicted by defendant designed to cause or known to
create a risk of substantial bodily injury, extreme pain or mental distress
where, according to testimony, minor was in extreme pain for days and unable to
sit without pain for weeks after spanking. 81 H. 5, 911 P.2d 725.

Trial court’s finding that defendant parent’s "slap
across the face" was not "reasonably proportional" to child’s
refusal to come to defendant when repeatedly directed to do so was not
supported by substantial evidence. 90 H. 85, 976 P.2d 399.

Where defendant, a non-custodial parent, was acting within
the defendant’s court-prescribed unsupervised visitation time, defendant
retained, as a "residual parental right," within the meaning of
§571-2, the authority to discipline defendant’s child with respect to that
child’s conduct during the visitation period; thus, defendant was a
"parent" for purposes of subsection (1). 90 H. 85, 976 P.2d 399.

Prosecution failed to prove beyond a reasonable doubt that
mother's conduct did not come within the scope of parental discipline as
prescribed in paragraph (1) where, considering the totality of the facts and
circumstances, the force employed by mother was reasonably proportionate to
daughter's defiant behavior towards mother, was reasonably believed to be
necessary to discipline daughter, and the force used was "not designed to
cause or known to create substantial bodily injury, disfigurement, extreme pain
or mental distress, or neurological damage". 115 H. 149, 166 P.3d 322.

Considering the totality of facts and circumstances, the
force employed by mother's boyfriend (1) was reasonably proportionate to
minor's defiant behavior towards boyfriend, (2) was reasonably believed to be
necessary to discipline minor for minor's defiant attitude and demeanor, and
the degree of force used was "not designed to cause or known to create a
substantial risk of causing bodily injury"; thus, boyfriend's discipline
was not excessive in light of minor's age, misconduct, and the comparatively
mild physical force used, and the prosecution failed to disprove boyfriend's
parental discipline defense beyond a reasonable doubt. 119 H. 468, 199 P.3d
57.

Where parent struck child, evidence insufficient to support
finding that force used by parent exceeded protection provided by paragraph
(1)(b) (1985). 9 H. App. 345, 841 P.2d 1076.

Trial court erred when it concluded that "reasonably
related" standard in paragraph (1)(a) precludes altogether the use of
disciplinary force simply because prior non-physical alternatives failed to
prevent minor's continuing misconduct. 82 H. 373 (App.), 922 P.2d 986.

The "physical harm" encompassed in the definition
of family violence in §571-2 would not preclude a parent’s right to use force
to discipline a child as permitted by paragraph (1), and duty to discipline a
child under §577-7(a). 88 H. 200 (App.), 965 P.2d 133.

The term "family violence" in §571-46(9) (1993)
does not extend to the type of physical discipline of a child by his or her
parent that is expressly permitted in paragraph (1); the limits on the use of
physical force as a disciplinary measure in paragraph (1) adequately served to
guide the family court’s application of §571-46(9) (1993) in determining the
best interests of the child when awarding custody or visitation. 88 H. 200
(App.), 965 P.2d 133.

There was substantial evidence adduced to negate the
"parental discipline" justification defense under paragraph (1) where
what uncle levied upon nephew was a wanton beating that (1) was not reasonably
related to the purpose of safeguarding or promoting the welfare of the nephew,
including the prevention or punishment of the nephew's misconduct, nor
reasonably proportional to the misconduct being punished and reasonably
believed necessary to protect the welfare of the nephew, and (2) directly or by
its common sequelae is "known to create a risk of substantial bodily
injury". 105 H. 394 (App.), 98 P.3d 265.

Defendant's conviction of harassment under §711-1106 reversed
where trial court erroneously concluded that father's actions could not be seen
as reasonably necessary to protect the welfare of the recipient, and the State
failed its burden of disproving beyond a reasonable doubt the justification
evidence that was adduced, or proving beyond a reasonable doubt facts
negativing the justification defense under this section. 106 H. 252 (App.),
103 P.3d 412.

__________

§703-309 Commentary:

1. H.R.S. §577-7.

2. Id. §577-12.

3. Territory v. Cox, 24 Haw. 461, 463 (1918).

4. H.R.S. §298-16; Kahula v. Austin, 8 Haw. 54 (1890);
Territory v. Cox, supra.

5. Territory v. Cox, supra (whipping considered reasonable
punishment); Kahula v. Austin, supra (haircutting considered unreasonable
punishment). It appears that judgments as to reasonableness in this area are
likely to change to reflect more contemporary standards.

6. Territory v. Cox, supra at 463; Kahula v. Austin, supra.

7. H.R.S. §§353-91, 353-94; King v. Sherman, 1 Haw. 150
(1883); In re Candido, 31 Haw. 982 (1931).

8. United States v. Gisaburo, 1 U.S. Dist. Ct. Haw. 323
(1902).