§709-901  Concealing the corpse of an
infant.  (1)  A person commits the offense of concealing the corpse of an
infant if the person conceals the corpse of a new-born child with intent to
conceal the fact of its birth or to prevent a determination of whether it was
born dead or alive.



(2)  Concealing the corpse of an infant is a
misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]



 



COMMENTARY ON §709-901



 



  Concealing an infant corpse makes impossible the
determination of whether or not criminal conduct was involved in the failure of
the fetus to be born alive or in the failure of the infant to continue to
live.  When an infant corpse is found after it has been hidden, the
decomposition of the corpse makes it impossible to determine beyond a
reasonable doubt:  (1) whether the fetus had been born alive before it met its
death (in which case the fetus would be a "person" as that term is
defined in Chapter 707, which covers in part, crimes involving homicide); (2)
whether, if born alive, the death resulted from murder, manslaughter, negligent
homicide, or other causes; and (3) whether, if not born alive, the pregnancy
was terminated by an illegal abortion.  Therefore it is advisable to have a
residual section making it an offense to conceal the corpse of a new-born
child.



  Previous Hawaii law on this subject was too restricted.[1] 
It seems unwise to limit the offense to cases in which the actor was the mother
of the fetus or infant and in which, if born alive, the infant would be
illegitimate.  Although most cases of concealment might present these
circumstances, it seems entirely possible that some cases might not.  An infant
or fetus conceived in wedlock may be concealed by its mother or some other
individual.  Moreover, the Code rejects limiting the offense to conduct of the
mother only.



[A] limitation
of coverage to the mother is unwise, since someone else may conceal the birth. 
Of course, if the mother and a relative or friend conspire to conceal the
birth, accomplice responsibility brings the latter within the ambit of criminal
law.  But cases are on record in other states in which[,] without the knowledge
of the mother and while she was still disoriented because of the childbirth
process, relatives have taken the fetus away and concealed it.  Accomplice responsibility
does not arise in this case, but the need for inclusion is obvious.[2]



  The Code enlarges the offense and eliminates restrictions in
its coverage which seem clearly inconsistent with its purpose.



 



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§709-901 Commentary:



 



1.  H.R.S. §768-8, which provided:  "If any woman conceals
the death of any issue of her body, whether born alive or not, which, if born
alive, would have been illegitimate, so that it may not be known whether the
issue was born alive or not, or whether it was murdered, she shall be fined not
more than $100 and imprisoned at hard labor not more than two years."



 



2.  Prop. Mich. Rev. Cr. Code, comments at 500.