§707-732  Sexual assault in the third
degree.  (1)  A person commits the offense of sexual assault in the third
degree if:



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



(b) The person knowingly subjects to sexual contact
another person who is less than fourteen years old or causes such a person to
have sexual contact with the person;



(c) The person knowingly engages in sexual contact
with a person who is at least fourteen years old but less than sixteen years
old or causes the minor to have sexual contact with the person; 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 contact
another person who is mentally defective, mentally incapacitated, or physically
helpless, or causes such a person to have sexual contact with the actor;



(e) 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
contact 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, or causes the person to have sexual contact with the actor; or



(f) The person knowingly, by strong compulsion, has
sexual contact with another person or causes another person to have sexual
contact with the actor.



Paragraphs (b), (c), (d), and (e) shall not be
construed to prohibit practitioners licensed under chapter 453 or 455 from
performing any act within their respective practices; provided further that
paragraph (e)(v) shall not be construed to prohibit a law enforcement officer
from performing a lawful search pursuant to a warrant or an exception to the
warrant clause.



(2)  Sexual assault in the third degree is a
class C felony. [L 1986, c 314, pt of §57; am L 1987, c 181, §11; am L Sp 2001
2d, c 1, §§2, 7; am L 2002, c 36, §§2, 3; am L 2003, c 62, §1; am L 2004, c 10,
§15 and c 61, §5; am L 2009, c 11, §74]



 



Note



 



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



 



Case Notes



 



  Sexual assault in the fourth degree under §707-733(1)(a) not
an included offense of sexual assault in the third degree under subsection
(1)(b) as defined by §701-109(4).  83 H. 308, 926 P.2d 599.



  Where age of victim is element of sexual offense, the
specified state of mind is not intended to apply to that element; defendant
thus strictly liable with respect to attendant circumstance of victim's age in
a sexual assault.  83 H. 308, 926 P.2d 599.



  Sexual assault in the third 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.



  "Mentally defective".  5 H. App. 659, 706 P.2d
1333.



  Based on §701-109(4)(a), fourth degree sexual assault under
§707-733(1)(a) is a lesser included offense of third degree sexual assault
under subsection (1)(e).  85 H. 92 (App.), 937 P.2d 933.



  Third degree sexual assault committed in violation of
subsection (1)(e) not a continuous offense; defendant's convictions of five
counts of that offense, each based on a separate sexual contact thus did not
violate §701-109(1)(e).  85 H. 92 (App.), 937 P.2d 933.



  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.