§707-700 - Definitions of terms in this chapter.
PART I.
GENERAL PROVISIONS RELATING TO OFFENSES
AGAINST
THE PERSON
§707-700 Definitions of terms in this
chapter. In this chapter, unless a different meaning plainly is required:
"Bodily injury" means physical pain,
illness, or any impairment of physical condition.
"Compulsion" means absence of
consent, or a threat, express or implied, that places a person in fear of
public humiliation, property damage, or financial loss.
"Dangerous instrument" means any
firearm, whether loaded or not, and whether operable or not, or other weapon,
device, instrument, material, or substance, whether animate or inanimate, which
in the manner it is used or is intended to be used is known to be capable of
producing death or serious bodily injury.
"Deviate sexual intercourse" means
any act of sexual gratification between a person and an animal or a corpse,
involving the sex organs of one and the mouth, anus, or sex organs of the
other.
"Emergency worker" means any:
(1) Law enforcement officer, including but not
limited to any police officer, public safety officer, parole or probation
officer, or any other officer of any county, state, federal, or military agency
authorized to exercise law enforcement or police powers;
(2) Firefighter, emergency medical services personnel,
emergency medical technician, ambulance crewmember, or any other emergency
response personnel;
(3) Member of the Hawaii national guard on any duty
or service done under or in pursuance of an order or call of the governor or
the President of the United States or any proper authority;
(4) Member of the United States Army, Air Force,
Navy, Marines, or Coast Guard on any duty or service done under or in pursuance
of an order or call of the President of the United States or any proper
authority;
(5) Member of the national guard from any other state
ordered into service by any proper authority;
(6) Person engaged in civil defense functions as
authorized by the director of civil defense or as otherwise authorized under
chapter 128; or
(7) Person engaged in disaster relief by
authorization of the director of disaster relief or as otherwise authorized
under chapter 127.
"Labor" means work of economic or
financial value.
"Married" includes persons legally
married, and a male and female living together as husband and wife regardless
of their legal status, but does not include spouses living apart.
"Mentally defective" means a person
suffering from a disease, disorder, or defect which renders the person
incapable of appraising the nature of the person's conduct.
"Mentally incapacitated" means a
person rendered temporarily incapable of appraising or controlling the person's
conduct as a result of the influence of a substance administered to the person
without the person's consent.
"Person" means a human being who has
been born and is alive.
"Physically helpless" means a person
who is unconscious or for any other reason physically unable to communicate
unwillingness to an act.
"Relative" means parent, ancestor,
brother, sister, uncle, aunt, or legal guardian.
"Restrain" means to restrict a
person's movement in such a manner as to interfere substantially with the
person's liberty:
(1) By means of force, threat, or deception; or
(2) If the person is under the age of eighteen or
incompetent, without the consent of the relative, person, or institution having
lawful custody of the person.
"Serious bodily injury" means bodily
injury which creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of the function of
any bodily member or organ.
"Services" means a relationship
between a person and the actor in which the person performs activities under
the supervision of or for the benefit of the actor. Prostitution-related and
obscenity–related activities as set forth in chapter 712 are forms of
"services" under this section. Nothing in this chapter shall be
construed to legitimize or legalize prostitution.
"Sexual contact" means any touching,
other than acts of "sexual penetration", of the sexual or other
intimate parts of a person not married to the actor, or of the sexual or other
intimate parts of the actor by the person, whether directly or through the
clothing or other material intended to cover the sexual or other intimate
parts.
"Sexual penetration" means:
(1) Vaginal intercourse, anal intercourse, fellatio,
deviate sexual intercourse, or any intrusion of any part of a person's body or
of any object into the genital or anal opening of another person's body; it
occurs upon any penetration, however slight, but emission is not required. As
used in this definition, "genital opening" includes the anterior
surface of the vulva or labia majora; or
(2) Cunnilingus or anilingus, whether or not actual
penetration has occurred.
For purposes of this chapter, each act of sexual
penetration shall constitute a separate offense.
"Strong compulsion" means the use of
or attempt to use one or more of the following to overcome a person:
(1) A threat, express or implied, that places a
person in fear of bodily injury to the individual or another person, or in fear
that the person or another person will be kidnapped;
(2) A dangerous instrument; or
(3) Physical force.
"Substantial bodily injury" means
bodily injury which causes:
(1) A major avulsion, laceration, or penetration of
the skin;
(2) A burn of at least second degree severity;
(3) A bone fracture;
(4) A serious concussion; or
(5) A tearing, rupture, or corrosive damage to the
esophagus, viscera, or other internal organs. [L 1972, c 9, pt of §1; am L 1973,
c 136, §6; am L 1980, c 223, §1; am L 1981, c 213, §1; am L 1986, c 314, §48;
am L 1987, c 181, §7; gen ch 1993; am L 2001, c 30, §1; am L 2004, c 61, §3; am
L 2006, c 116, §4 and c 230, §26; am L 2008, c 147, §1]
Revision Note
Definitions rearranged.
COMMENTARY ON §707-700
This section is definitional only and, of course, specifies
no offense. A discussion of the definitions in this section, when needed or
appropriate, is found in the commentary to the substantive offenses employing
the terms defined.
SUPPLEMENTAL COMMENTARY ON §707-700
With respect to Item (11), relating to the definition of
"married", the Proposed Draft had recommended that
"married" should also include "a male and female living together
as man and wife regardless of their legal status." The Code as originally
adopted in 1972 did not contain that recommended clause. However, by Act 136,
Session Laws 1973, the clause was restored. The Legislature declared,
"the definition of 'married' is amended to conform to the language of the
proposed Draft of the Hawaii Penal Code as submitted by the Judicial Council of
Hawaii and recognizes the prevalence of many male and female couples living
together although not legally married." House Standing Committee Report
No. 726.
Act 223, Session Laws 1980, amended the definitions of
"sexual intercourse" and "forcible compulsion" to make
their meanings less restrictive so as to bring more conduct within the scope of
sexual offenses. It also deleted the definition of "female." This
term was applicable only to the offense of rape, and it became superfluous when
the offense was "de-sexed" in 1979.
Act 213, Session Laws 1981, sought to clarify the definition
of "forcible compulsion." One of the primary changes was to delete
the requirement that physical force be such as to "overcome
resistance."
Act 314, Session Laws 1986, added the definition of
"substantial bodily injury" to account for injuries far more serious
than bodily injury--which includes any physical pain, illness, or impairment--but
do not approximate the risk of death, permanent loss or disfigurement that
constitute "serious bodily injury".
Act 314 also added the definition of "sexual
penetration". That definition was enacted to express the legislature's
intent that even though rape and sodomy are renamed as sexual assault offenses,
prosecutors may still charge a defendant with multiple counts for each act of
penetration. Conference Committee Report No. 51-86.
Act 181, Session Laws 1987, broadened the definitions of
"sexual contact" by including touching of the sexual or other
intimate parts through the clothing or other material intended to cover the
sexual or intimate parts. Senate Standing Committee Report No. 1130.
Act 30, Session Laws 2001, amended the definition of
"substantial bodily injury" by deleting the requirement that
qualifying second degree burns be caused by chemical, electrical, friction, or
scalding means. The legislature found that the definitions of many crimes
include a requirement of "substantial bodily injury" and that
defining that term too restrictively excludes from successful prosecution many
otherwise criminal actions. The legislature supported the categorization of
every second degree burn, regardless of origin, as a "substantial bodily
injury". The legislature found that burns that are substantial bodily
injuries are determined by the severity and degree, not by the nature or cause
of the injuries. Senate Standing Committee Report No. 829, House Standing
Committee Report No. 1220.
Act 61, Session Laws 2004, amended the definitions of
"sexual contact" and "sexual penetration". The legislature
found that clarification of the definition of "sexual penetration"
was necessary because of a recent Hawaii supreme court decision, in which the
court held that the definition of "sexual penetration" required proof
of actual penetration for the acts of cunnilingus or anilingus. A previous
decision held that the act of cunnilingus is an act of "sexual
penetration" under the statutory definition of "sexual
penetration", irrespective of whether there was proof of actual
penetration. The legislature found that it is usually difficult for many
sexual assault victims to know whether penetration, however slight, occurred
during the act of cunnilingus. Also, the failure to provide such a
clarification would reduce many sexual assaults involving acts of cunnilingus
or anilingus on children under the age of consent, from a class A felony to a
class C felony. The legislature believed that the definition of sexual
penetration should include the acts of cunnilingus or anilingus, regardless of
whether there was actual penetration. Senate Standing Committee Report No.
3121.
Act 116, Session Laws 2006, defined "emergency
worker". Act 116 penalized the commission of certain crimes during a time
of a civil defense emergency proclaimed by the governor or during a period of
disaster relief. The legislature found that Hurricanes Katrina and Rita
created situations that highlighted the prevalence of opportunistic crimes that
can occur during these times. When resources are needed to restore law and
order, emergency response aid to victims may be hampered or delayed, leaving
victims at an increased risk of bodily injury or death. Stronger measures to
control law and order may deter looting and other crimes. Senate Standing
Committee Report No. 3302, House Standing Committee Report No. 757-06,
Conference Committee Report No. 64-06.
Act 230, Session Laws 2006, defined the term "genital
opening" as used in the definition of "sexual penetration".
House Standing Committee Report No. 665-06.
Act 230, Session Laws 2006, made a technical, nonsubstantive
amendment to the definition of "mentally incapacitated".
Act 147, Session Laws 2008, amended this section by defining
"labor" and "services". Act 147 made it a crime of
kidnapping to intentionally or knowingly restrain another person with the
intent to unlawfully obtain the labor or services of the person, regardless of
whether a debt collection is involved. Conference Committee Report No. 38-08.
Case Notes
Forcible compulsion construed with respect to 18-month-old
victim. 56 H. 664, 548 P.2d 271.
"Sexual intercourse" means coitus or bodily
intrusions or penetrations which are malum in se. 66 H. 281, 660 P.2d 522.
"Serious bodily injury": "serious"
modifies only "permanent disfigurement", not "protracted
loss" phrase. 75 H. 419, 864 P.2d 583.
Definition of "sexual contact" not
unconstitutionally overbroad as it does not interfere with the constitutionally
protected activity of nude dancing; section permits dancing in the nude and
allows customers to look at performers dancing in the nude; the conduct
prohibited is the touching of sexual or intimate parts. 88 H. 19, 960 P.2d
1227.
Definition of "sexual contact" not
unconstitutionally vague as it establishes a bright line rule "you can
look but you can't touch", gives a person of ordinary intelligence a
reasonable opportunity to know what conduct is prohibited, constitutes an
explicit standard that avoids arbitrary and discriminatory enforcement and is
not subjective. 88 H. 19, 960 P.2d 1227.
Under the plain meaning of §712-1200 and this section,
touching the sexual or other intimate parts of another person, for a fee,
constitutes prostitution, even if the touching occurs through clothing. 88 H.
19, 960 P.2d 1227.
A specific unanimity jury instruction was not required for
offense of second degree unlawful imprisonment under §707-722 where defendant's
conduct, as proved by the prosecution, constituted a continuing course of
conduct "set on foot by a single impulse and operated by an unintermittent
force", with "one general intent ... and one continuous
plan". 95 H. 440, 24 P.3d 32.
As a precondition to convicting a person of first degree
sexual assault, in violation of §707-730(1)(b), the prosecution must prove
beyond a reasonable doubt that the person committed an act of "any
penetration, however slight," as mandated by the plain language of the
definition of "sexual penetration" contained in this section. 102 H.
391, 76 P.3d 943.
Based on the plain language and legislative history of this
section and construing the definition of "sexual contact" with
reference to other definitions relating to sexual relations in this section and
§712-1210, contact with the interior of the mouth constitutes "touching of
intimate parts" under the definition of "sexual contact" in this
section. 108 H. 279, 118 P.3d 1222.
According to the plain language of the Hawaii penal code, a
fetus is not included within the definition of the term "person".
109 H. 115, 123 P.3d 1210.
"Bodily injury." 2 H. App. 19, 624 P.2d 1374.
"Mentally incapacitated"; consent vitiated by
deception; based on the record, victim was "physically helpless". 5
H. App. 404, 696 P.2d 846.
"Mentally defective". 5 H. App. 659, 706 P.2d
1333.
When jury can infer handgun is dangerous. 5 H. App. 674, 706
P.2d 453.
Evidence of injuries sustained by victim struck in face with
golf club, including broken facial and jaw bones, was sufficient to prove serious
bodily injury. 8 H. App. 595, 817 P.2d 123.
In the terroristic threatening context, an instrument is a
dangerous instrument, as defined in this section, when it is known to be
capable of producing death or serious bodily injury when used in the manner it
is threatened to be used. 10 H. App. 584, 880 P.2d 213.
Witness' testimony that witness was "sore" after
being struck by appellant was sufficient to establish "physical pain"
and thus, the element of "bodily injury" in assault charge. 79 H. 265
(App.), 900 P.2d 1332.
Section imposes requirement that laceration must be
"major" in order to fall within definition of "substantial
bodily injury". 82 H. 373 (App.), 922 P.2d 986.
There was substantial evidence that minor caused serious
bodily injury to complainant as defined in this section where minor inflicted
bodily injury which caused protracted loss or impairment of the function of any
bodily member or organ--namely, the eye injury that caused the blurred and
diplopic vision that was still bothering complainant at the time of trial. 106
H. 530 (App.), 107 P.3d 1203.
Where defendant punched and kicked another so ferociously in
the face that the lip was split clean through, four teeth were bashed in, the
eye was hemorrhaged and pushed inward, and the orbital floor was fractured
causing blurred and diplopic vision lasting almost eleven months, there was
substantial evidence that the defendant was, at the very least, aware that it
was practically certain that defendant's conduct would cause the result
required, "serious bodily injury", for conviction of first degree
assault. 106 H. 530 (App.), 107 P.3d 1203.
Where there was substantial evidence that the manner in which
the "little black stick" was used was capable of producing serious
bodily injury as defined under this section, minor was properly convicted as an
accomplice to robbery in the first degree under §708-840. 107 H. 439 (App.),
114 P.3d 945.
Although the evidence was insufficient to show that defendant
committed the offense of first degree assault, there was ample evidence to show
that the victim's injury satisfied the definition of "substantial bodily
injury" under this section and that defendant thus committed the lesser
included offense of second degree assault in violation of §707-711(1)(a); thus
the jury, having returned a guilty verdict against defendant for first degree
assault, must also have found sufficient evidence to prove the lesser included
offense of second degree assault. 116 H. 445 (App.), 173 P.3d 592.
A stabbing injury that is caused by a knife blade that
penetrates close to vital internal organs and vessels but misses without
harming them, so that the injury quickly resolves itself without the need for
significant treatment, does not create a substantial risk of death within the
meaning of this section. 116 H. 445 (App.), 173 P.3d 592.