PART V. 
SEXUAL OFFENSES



 



Note



 



  For new section on continuous sexual assault of a minor under
the age of fourteen years subject to take effect only on ratification of
amendment to Article I of the St. Const., see L 2004, c 60.



 



Law Journals and Reviews



 



  Rape and Child Sexual Assault:  Women's Perspectives Required
to Dispel the Myths.  14 UH L. Rev. 157.



 



§§707-730 to 738  [OLD] REPEALED.  L
1986, c 314, §56.



 



§707-730  Sexual assault in the first
degree.  (1)  A person commits the offense of sexual assault in the first
degree if:



(a) The person knowingly subjects another person to
an act of sexual penetration by strong compulsion;



(b) The person knowingly engages in sexual
penetration with another person who is less than fourteen years old;



(c) The person knowingly engages in sexual
penetration with a person who is at least fourteen years old but less than
sixteen years old; provided that:



(i)  The person is not less than five years
older than the minor; and



(ii)  The person is not legally married to the
minor;



(d) The person knowingly subjects to sexual
penetration another person who is mentally defective; or



(e) The person knowingly subjects to sexual
penetration another person who is mentally incapacitated or physically helpless
as a result of the influence of a substance that the actor knowingly caused to
be administered to the other person without the other person's consent.



Paragraphs (b) and (c) shall not be construed to
prohibit practitioners licensed under chapter 453 or 455 from performing any
act within their respective practices.



(2)  Sexual assault in the first degree is a
class A felony. [L 1986, c 314, pt of §57; am L 1987, c 181, §9; am L Sp 2001
2d, c 1, §§1, 7; am L 2002, c 36, §3; am L 2003, c 62, §1; am L 2004, c 10, §15;
am L 2006, c 230, §32; am L 2009, c 11, §72]



 



Note



 



  The 2009 amendment is retroactive to April 3, 2008. L 2009, c
11, §76(2).



 



Cross References



 



  Testing of charged or convicted person for human
immunodeficiency virus status, see §325-16.5.



 



Case Notes



 



  Defendant's right to a fair trial was violated where
counselor of victim-witness was allowed to place hands upon victim's shoulders
while victim was testifying.  70 H. 472, 777 P.2d 240.



  Act of cunnilingus is an act of sexual penetration.  71 H.
127, 785 P.2d 615.



  Trial court did not commit plain error when it gave a single
instruction encompassing two counts of sexual assault in first degree; a
consent instruction may be given separately and need not be included as an
element of sexual assault.  75 H. 152, 857 P.2d 579.



  Sexual assault in the first degree, in violation of
subsection (1)(b), is not, and cannot be, a "continuing offense";
each distinct act in violation of this statute constitutes a separate offense
under the Hawaii Penal Code.  84 H. 1, 928 P.2d 843.



  As a precondition to convicting a person of first degree
sexual assault, in violation of subsection (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 §707-700.  102 H.
391, 76 P.3d 943.



  Trial court must instruct jury as to what specific facts jury
must find before it decides whether defendant is guilty of attempted sexual assault
in first degree.  77 H. 177 (App.), 880 P.2d 1224.



  Placement of the elemental attendant circumstances after the
state of mind in the enumerated elements instruction was not error; when read
and considered as a whole, the instructions adequately informed the jury of the
prosecution's burden to prove that complainant did not consent to the acts
alleged and was not married to defendant at the time, and that defendant was
aware of both circumstances when defendant acted.  97 H. 140 (App.), 34 P.3d
1039.



  Where there was no evidence, independent of defendant's
extrajudicial confession, of the corpus delicti of attempted sexual assault of
victim by defendant, defendant's conviction reversed.  103 H. 490 (App.), 83
P.3d 753.



 



Prior law.



  Attempted rape.  56 H. 664, 548 P.2d 271.



  Defendant may be found liable as accomplice.  61 H. 475, 605
P.2d 75.



  Prior law, applying to males only, did not violate the equal
protection guarantees or the ERA.  62 H. 120, 612 P.2d 526.



  Sufficiency of evidence of "forcible compulsion." 
62 H. 120, 612 P.2d 526.



  Evidence of forcible compulsion held sufficient.  62 H. 572,
617 P.2d 1214.



  Sexual abuse is a lesser included offense of rape and
sodomy.  64 H. 1, 635 P.2d 560.



  Facts sufficient to support finding of forcible compulsion. 
64 H. 470, 643 P.2d 536.



  Cited:  56 H. 343, 537 P.2d 724.