§707-734  Indecent exposure.  (1)  A
person commits the offense of indecent exposure if, the person intentionally
exposes the person's genitals to a person to whom the person is not married
under circumstances in which the actor's conduct is likely to cause affront.



(2)  Indecent exposure is a petty misdemeanor.
[L 1986, c 314, pt of §57; am L 1991, c 214, §2]



 



Case Notes



 



  Defendant did not act intentionally under circumstances
likely to cause affront by exposing defendant's genitals to a fellow sunbather
where, since other sunbather was also nude, there was no logical or rational
basis for concluding that defendant intended to cause affront to other
sunbather.  94 H. 60, 8 P.3d 1224.



  Indecent exposure, in violation of this section, does not
constitute an offense that entails "criminal sexual conduct" and,
consequently, persons convicted of indecent exposure are not "sex
offenders" for purposes of chapter 846E; thus, defendant was not required
to register as a "sex offender" pursuant to chapter 846E.  102 H.
383, 76 P.3d 935.



  No double jeopardy for convictions under this section and
§712-1217.  8 H. App. 535, 813 P.2d 335.



 



Prior law.



  The Proposed Draft of this section was cited in State v.
Rocker, 52 H. 336, 475 P.2d 684 (1970).



  Distinguished from open lewdness statute, §712-1217.  61 H.
62, 597 P.2d 10.



 



COMMENTARY ON §§707-730 TO 734



 



  Act 314, Session Laws 1986, incorporated all of the sexual
offenses into five degrees of sexual assault.  These new crimes comprise a
graduated series of offenses from a class A felony to a petty misdemeanor,
providing punishment reflecting the seriousness of the offense committed.  As a
result of the changes the "voluntary social companion" distinction no
longer exists between what was first and second degree rape and sodomy. 
Conference Committee Report No. 51-86.



  Act 214, Session Laws 1991, amended §707-733 by providing
that a person commits fourth degree sexual assault if that person knowingly
trespasses on property for the purpose of surreptitious surveillance.  This
will avoid prosecuting innocent passersby and distinguishes this offense from
simple trespass.  Conference Committee Report No. 44.



  Act 214, Session Laws 1991, renamed §707-734 from sexual
assault in the fifth degree to indecent exposure which is intended to deal with
behavior such as nude sunbathing or streaking, which is likely to be an affront
to a substantial part of the community.  Senate Committee Report No. 1000.



  Act 366, Session Laws 1997, amended §707-731 to extend the
existing prohibition of sexual penetration of a prisoner by a corrections
officer to a general prohibition of sexual penetration of any arrested or
detained person by a law enforcement officer.  The legislature found that under
current law, adult corrections officers are held to a higher standard of
conduct in relation to their prisoners than police officers.  The legislature
further found that existing law recognized that a person in custody was in no
position to consent to an act of sexual penetration by those incarcerating
them.  Thus, the legislature believed that the policy of preventing coercion by
correctional officers for sexual favors from inmates and to prevent inmates
from using sex to extort favors from correctional officers should be extended
to all law enforcement officers.  Senate Standing Committee Report No. 767,
House Standing Committee Report No. 1217.



  Act 379, Session Laws 1997, added §707-733.5, creating a new
class A felony offense known as continuous sexual assault of a minor under the
age of fourteen years, which provides specific circumstances under which sexual
assault of a minor under the age of fourteen years is deemed a continuing
offense.  The legislature found that public safety demanded immediate action
against sex offenders who prey on children by taking advantage of their
relationship of trust with respect to the minor.  According to statistics,
sexual assault against minors is an offense in which an overwhelming majority
of minor victims knew their perpetrator.  The legislature further found that
these types of cases are often difficult to prosecute given that molesters who
reside in the same household with children sexually abuse their victim over an
extended period of time.  The child often has difficulty remembering or
identifying the specific dates on which the child was molested and may even
repress the memory of events.  Senate Standing Committee Report No. 1594,
Conference Committee Report No. 28.



  Act 1, Second Special Session Laws 2001, amended §§707-730
and 707-732 to require, for the offenses of sexual assault in the first degree
and sexual assault in the third degree, that the minor be at least fourteen
years old but less than sixteen years old, and the defendant be at least five
years older than the minor and not married to the minor.  The legislature found
that, in many cases, minors lacked the capacity to understand the
responsibilities and ramifications of engaging in a sexual relationship with
adults.  Current law allowed adults to enter into consensual sexual
relationships with minors as young as fourteen years old without penalty.  The
legislature believed that these minors were unfairly burdened with the
presumption of knowing the consequences of engaging in sexual relations with an
adult, and that the Act would protect Hawaii's children from harmful sexual
relationships with adults.  Conference Committee Report No. 66, Senate Standing
Committee Report No. 1394.



  Act 36, Session Laws 2002, amended §§707-731 and 707-732 to
prohibit private company employees at correctional facilities or in other
residential services under the director of public safety from knowingly
subjecting imprisoned persons to sexual contact or sexual penetration.  The
legislature found inmates particularly vulnerable to sexual assaults from
employees at correctional facilities.  Private employees associated with the
prison system were in the same position of authority as state employees over
the inmates they supervised.



  The legislature found that although current state law
prohibited sexual assaults against inmates in Hawaii correctional facilities,
no reference was made to correctional facilities operated by private
companies.  The legislature further found that the law could be construed to
exclude acts by employees of private companies working in state correctional
facilities.  Act 36 addressed this "loophole" in the law by ensuring
that sexual offenses committed by any correctional facility employee against
inmates were prohibited, regardless of the employer's status as a public or
private facility.  House Standing Committee Report No.  696-02, Senate Standing
Committee Report No. 3162.



  Act 62, Session Laws 2003, amended §§707-730 and 707-732 by
removing the sunset provision of Act 1, Second Special Session Laws 2001, which
raised the age at which a person can consent to sexual contact from fourteen to
sixteen years of age in most cases.  Act 62 made permanent the provisions that
raised the age of consent to sixteen in most cases. House Standing Committee
Report No. 568.



  Act 10, Session Laws 2004, amended §§707-730 and 707-732 by
amending Act 62, Session Laws 2003, to include the amendment to §707-732 by Act
36, Session Laws 2002.  Sections 707-730 and 707-732 were amended by Act 1,
Second Special Session Laws 2001, subject to repeal and reenactment on June 30,
2003.  Act 36, Session Laws 2002, amended the repeal and reenactment provisions
of Act 1, Second Special Session Laws 2001, to exempt Act 36's amendment of
§707-732 from the repeal and reenactment.  Act 62, Session Laws 2003, deleted
the repeal and reenactment provision by amending Act 1, Second Special Session
Laws 2001, but not Act 36, Session Laws 2002.  House Standing Committee Report
No. 1015-4.



  Act 61, Session Laws 2004, amended §§707-731 and 707-732 by
including as a victim of sexual assault in the second degree, a person
committed to the director of public safety and knowingly subjected to sexual
penetration, and by amending the offense of sexual assault in the third degree
to include law enforcement officers who knowingly subject to sexual contact a
person confined to a detention facility or in custody. The Act created
uniformity between the offenses of sexual assault in the second degree and in
the third degree.



  Act 61 also corrected an error in §707-732.  The purpose of
the 2002 amendment to §§707-731 and 707-732 was to include employees of private
companies in correctional facilities in sexual offense statutes that prohibit
sexual contact and penetration with imprisoned persons or persons confined in a
detention facility.  However, the 2002 amendment inadvertently excluded
state-employed law enforcement officers and only prohibited private company
employees from committing the acts.  Act 61 corrected the mistake by including
state-employed law enforcement officers and clarified language regarding what
does and does not constitute an offense. Conference Committee Report No. 35-04,
Senate Standing Committee Report No. 3121.



  Act 60, Session Laws 2006, added §707-733.6, reenacting
provisions that define the behavior that constitutes the crime of continuous
sexual assault of a minor under the age of fourteen years and the unanimity
required to convict a person of the crime.  Act 60, along with the proposed
constitutional amendment in Senate Bill 2246, was intended to reverse the effect
of State v. Rabago, 103 Haw. 236 (2003).  Under the current law, it is
difficult to prosecute persons who repeatedly sexually assault young children
because of the difficulty the children have in remembering the individual dates
on which they were sexually assaulted.  Act 60 permitted the conviction of a
person of the continuous sexual assault of a child, if each member of the jury
was convinced beyond a reasonable doubt that the defendant had sexually
assaulted the child the required minimum number of times, even without
unanimity as to the individual assaults, thus making it easier to prosecute
those who repeatedly sexually assault children.  Senate Standing Committee
Report No. 3010, House Standing Committee Report No. 150-06.



  Act 230, Session Laws 2006, amended §707-730(1) by adding
[the offense of knowingly subjecting to sexual penetration another person who
is mentally defective and] the offense of date rape as sexual assault in the
first degree.  House Standing Committee Report No. 665-06. 



  Act 230, Session Laws 2006, amended §707-731(1) by deleting
the offense of knowingly subjecting to sexual penetration another person who is
mentally defective as sexual assault in the second degree to conform to the
amendment made in §707-730(1) by the Act.



  Act 11, Session Laws 2009, amended §§707-730(1),
707-731(1), and 707-732(1), by deleting references to chapter 460, relating to
osteopathy, which was repealed by Act 5, Session Laws 2008.  Senate Standing
Committee Report No. 49.