§707-751  Promoting child abuse in the
second degree.  (1)  A person commits the offense of promoting child abuse
in the second degree if, knowing or having reason to know its character and
content, the person:



(a)  Disseminates child pornography;



(b)  Reproduces child pornography with intent to
disseminate;



(c)  Disseminates any book, magazine, periodical,
film, videotape, computer disk, or any other material that contains an image of
child pornography; or



(d)  Disseminates any pornographic material which
employs, uses, or otherwise contains a minor engaging in or assisting others to
engage in sexual conduct.



(2)  As used in this section:



"Child pornography" means any
pornographic visual representation, including any photograph, film, video,
picture, or computer or computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means, of sexual conduct, if:



(a)  The pornographic production of such
visual representation involves the use of a minor engaging in sexual conduct;
or



(b)  The pornographic visual representation
has been created, adapted, or modified to appear that an identifiable minor is
engaging in sexual conduct.



"Community standards" means the
standards of the State.



"Computer" shall have the same
meaning as in section 708-890.



"Disseminate" means to publish, sell,
distribute, transmit, exhibit, present material, mail, ship, or transport by
any means, including by computer, or to offer or agree to do the same.



"Lascivious" means tending to incite
lust, to deprave the morals in respect to sexual relations, or to produce
voluptuous or lewd emotions in the average person, applying contemporary
community standards.



"Material" means any printed matter,
visual representation, or sound recording and includes, but is not limited to,
books, magazines, motion picture films, pamphlets, newspapers, pictures,
photographs, and tape or wire recordings.



"Minor" means any person less than
eighteen years old.



"Pornographic" shall have the same
meaning as in section 712-1210.



"Sadomasochistic abuse" means
flagellation or torture by or upon a person as an act of sexual stimulation or
gratification.



"Sexual conduct" means acts of
masturbation, homosexuality, lesbianism, bestiality, sexual penetration,
deviate sexual intercourse, sadomasochistic abuse, or lascivious exhibition of
the genital or pubic area of a minor.



"Visual representation" refers to,
but is not limited to, undeveloped film and videotape, and data stored on
computer disk or by electronic means that are capable of conversion into a
visual image.



(3)  The fact that a person engaged in the
conduct specified by this section is prima facie evidence that the person
engaged in that conduct with knowledge of the character and content of the
material.  The fact that the person who was employed, used, or otherwise
contained in the pornographic material was at that time, a minor, is prima
facie evidence that the defendant knew the person to be a minor.



(4)  Promoting child abuse in the second degree
is a class B felony. [L 1978, c 214, §2; am L 1982, c 218, §2; am L 1986, c
314, §59; am L 1997, c 363, §2; am L 2002, c 200, §3]



 



Cross References



 



  Reporting on child abuse, see chapter 350.



  Promoting pornography, see §712-1214.



 



Law Journals and Reviews



 



  State v. Kam:  The Constitutional Status of Obscenity in
Hawaii.  11 UH L. Rev. 253.



  The Jurisdictional Limits of Federal Criminal Child
Pornography Law.  21 UH L. Rev. 73.



 



COMMENTARY ON §§707-750 AND 751



 



  Act 214, Session Laws 1978, added these sections to prevent
the sexual exploitation of children.  Dealing with activities involving the
participation of children without attempting to define the conduct in terms of
pornography, these sections classify the offenses as offenses against the
person rather than pornography.  It is an offense for anyone to engage in the
proscribed activities whether the material or performance involving a minor is
pornographic or not.  Senate Conference Committee Report No. 27-78, House
Conference Committee Report No. 21.



  Act 218, Session Laws 1982, amended these sections to clarify
that the offense of promoting child abuse applies to the use of minors in
pornographic material.  Section 707-751 was found to be unconstitutional
because "the statute prohibited speech protected by the First and
Fourteenth Amendment of the United States Constitution...and because the
statute did not incorporate the three-part test defining obscenity as
enunciated by the U.S. Supreme Court in the case of Miller v. California, the
statute prohibited non-obscene as well as obscene materials."  The
constitutionality of the section is on appeal but the Legislature found
"that any question as to what is being prohibited should be
clarified."  House Conference Committee Report No. 4, Senate Conference
Committee Report No. 3.



  Act 91, Session Laws 1988, amended §707-750 by reclassifying
the offense of promoting child abuse in the first degree from a class B felony
to a class A felony.  The legislature found that victims of child abuse are the
least able to defend themselves, and the resulting emotional scars of these
victims increase the likelihood of further contact with the criminal justice
system; therefore, a more severe punishment for this offense is warranted.  The
legislature also found that reclassifying this offense will make the
classification consistent with the current penalty for sexual abuse in the
first degree involving a minor.  House Standing Committee Report No. 481-88,
Senate Standing Committee Report No. 2545.



  Act 363, Session Laws 1997, amended §§707-750 and 707-751 to
include persons producing or making pornographic material involving minors
under the offense of child abuse.  The legislature found that under existing
child abuse laws, in order for a person to be charged with child abuse, the pornographic
materials must show a minor engaged in or assisting others to engage in a
sexual act.  This loophole in the law allowed persons producing those materials
to exploit children by using them in sexually explicit poses without
technically violating the law. The legislature believed that it was important
to extend the scope of the offense of child abuse to include producing material
in which children are exploited through sexually explicit conduct.



  The Act also, inter alia, amended the definition of "sexual
conduct" to include lascivious exhibition of the genital or pubic area of
a minor, and added the definitions of "lascivious" and
"community standards", in both §§707-750 and 707-751.  Section
707-751 was also amended to include possession of pornographic material
involving children as an offense.  Senate Standing Committee Report No. 757,
House Standing Committee Report No. 1214.



  Act 200, Session Laws 2002, amended these sections by, among
other things, defining "child pornography" to encompass computer-generated
representations of minors.  The legislature found that Act 200 addressed the
problem of utilizing computer technology in committing crimes against
children.  House Standing Committee Report No. 417-02, Conference Committee
Report No. 36-02.



 



Case Notes



 



  Statute not unconstitutionally overbroad.  65 H. 116, 648
P.2d 190.



 



Hawaii Legal Reporter Citations



 



  Due process.  81-1 HLR 810147.