§707-731  Sexual assault in the second
degree.  (1)  A person commits the offense of sexual assault in the second
degree if:



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



(b) The person knowingly subjects to sexual
penetration another person who is mentally incapacitated or physically
helpless; or



(c) The person, while employed:



(i)  In a state correctional facility;



(ii)  By a private company providing services at
a correctional facility;



(iii)  By a private company providing
community-based residential services to persons committed to the director of
public safety and having received notice of this statute;



(iv)  By a private correctional facility
operating in the State of Hawaii; or



(v)  As a law enforcement officer as defined in
section 710-1000(13),



knowingly
subjects to sexual penetration an imprisoned person, a person confined to a
detention facility, a person committed to the director of public safety, a
person residing in a private correctional facility operating in the State of
Hawaii, or a person in custody; provided that paragraph (b) and this paragraph
shall not be construed to prohibit practitioners licensed under chapter 453 or
455 from performing any act within their respective practices; and further
provided that this paragraph shall not be construed to prohibit a law
enforcement officer from performing a lawful search pursuant to a warrant or
exception to the warrant clause.



(2)  Sexual assault in the second degree is a
class B felony. [L 1986, c 314, pt of §57; am L 1987, c 181, §10; am L 1997, c
366, §1; am L 2002, c 36, §1; am L 2004, c 61, §4; am L 2006, c 230, §33; am L
2009, c 11, §73]



 



Note



 



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



 



Case Notes



 



  Because sexual assault in the fourth degree in violation of
§707-733(1)(a) and attempted sexual assault in the fourth degree in violation
of §§705-500 and 707-733(1)(a) are included offenses of charged offense of
attempted sexual assault in the second degree in violation of §§705-500 and
707-731(1)(a), circuit court erred in refusing, over appellant's objection, to
instruct jury with respect to them. 79 H. 46, 897 P.2d 973.



  Evidence sufficient to establish absence of consent and thus
sufficient to establish element of "compulsion".  81 H. 39, 912 P.2d
71.



  State must prove beyond a reasonable doubt that complainant
was mentally defective, mentally incapacitated, or physically helpless and
defendant was aware that complainant was such a person.  81 H. 447 (App.), 918
P.2d 254.



  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 subsection
(1)(c).  86 H. 426 (App.), 949 P.2d 1047.



  Subsection (1)(c) not unconstitutionally vague.  86 H. 426
(App.), 949 P.2d 1047.