§709-903  Persistent nonsupport.  (1)  A
person commits the offense of persistent nonsupport if the person knowingly and
persistently fails to provide support which the person can provide and which
the person knows the person is legally obliged to provide to a spouse, child,
or other dependent.



(2)  "Support" includes but is not
limited to food, shelter, clothing, education, and other necessary care as
determined by law.



(3)  Persistent nonsupport is a misdemeanor. [L
1972, c 9, pt of §1; gen ch 1993]



 



COMMENTARY ON §709-903



 



  The purpose of laws dealing with nonsupport by a person who
owes a duty of support to another is to enforce compliance with the legislative
directive setting forth a community standard; yet a policy of strict criminal
punishment of offenders would frustrate the purpose of the law by
incapacitating (by incarceration or fine) the defendant from providing the
support.



Exemplary
punishment is of doubtful efficacy in complex family situations, where many
forces, psychic, social, and economic, may combine to excuse, if not justify,
the behavior.  Moreover, imprisonment should be a last resort here, since it
incapacitates the defendant from providing the very support which the community
seeks to require and frustrates any broader effort to rehabilitate the family
situation.  Recent thought has favored the development of "family
courts" staffed to handle non-support and other intra-family problems
primarily through social work, with less concentration on purely fiscal
aspects.[1]



The Code adopts the position that intervention of the criminal
process ought to take place only as a last resort.  The primary resort ought to
be to the social and counseling processes of the Family Court.  It is only when
a record has been established of repeated, persistent failure to provide the
support which the defendant can provide and which the defendant knows the
defendant is obliged by law to provide that the criminal process ought to be
employed.



By focussing on
"persistent" defaulters, we express a legislative policy in favor of
resort, in the first instance, to non-penal measures....



The concept
of "persistent" violation is not unprecedented in penal law....  The
term connotes repetition, obstinacy, wilfulness; and it is difficult to
formulate a more precise standard to differentiate the aggravated case of
continued defiance of the support law, which we wish to penalize, from the
simple case of default which may be solved by an official notice or judicial
order to pay, or some intelligent social work.[2]



  There were a number of provisions in previous law which dealt
with the problem of nonsupport, and they were not totally consistent with one
another.  None of them focused on the concept of persistent default as a
condition precedent for a criminal sanction; however, in actual practice, the
prosecutor probably required some degree of persistency.



  Under Hawaii's adoption, in modified form of the Uniform
Desertion and Nonsupport Act:



Any husband who
deserts or wilfully neglects his wife, or wilfully fails, neglects, or refuses
to provide for her support or maintenance, thereby reducing her to destitute or
necessitous circumstances, or any parent who deserts or wilfully neglects his
or her child or children under the age of sixteen years, or wilfully fails,
neglects or refuses to provide for the support or maintenance of the child or
children or wilfully fails, neglects, or refuses to pay amounts awarded for the
support and maintenance of such child or children under a decree of divorce,
thereby reducing the child or children to destitute or necessitous
circumstances, shall be guilty of a misdemeanor, and on conviction thereof,
shall be punished by a fine not exceeding $500 or imprisonment not exceeding
one year, or both; provided, that instead of imposing the sentence provided in
this section the court may release the defendant under suspended sentence for
such period as shall be fixed by the court and under such terms as shall be
fixed by the court as to the payment weekly or otherwise of money for the
support of the wife or child and as to giving security for such payments and
for the appearance of the defendant at such time or times as the court shall
direct.  The terms so fixed by the court shall be subject to change or
additional security at any time.[3]



Under the chapter dealing with protection of children,
substantially similar conduct, as it related to children, subjected the
offender to a sentence with approximately half the severity of that provided
under the Uniform Act.



Any person who
wilfully abandons...any child under his legal control or neglects to provide
the child with suitable or necessary food or clothing...shall be fined not more
than $200 or imprisoned not more than six months.[4]



  The statutes imposing a duty of support are not exactly
consistent in defining the extent of the duty.  Although an illegitimate child
does not have a right to be supported by its father,[5] if an action to
establish paternity is brought and paternity is established, the child becomes
entitled, with certain exceptions, to "support, maintenance and
education" until the child reaches eighteen years of age.[6]  Under
certain specific circumstances, a step-parent is required to support his or her
step-child.[7]  The age to which the duty to support one's children continues
is not specified, except in the case of illegitimates, although by inference it
continues until the child has achieved majority.[8]



  The Code attempts to reconcile some of the latent ambiguities
which exist in comparing the various sections of prior law.  A single section
covering penal default of support provides a uniform authorized sentence for
similar conduct.  By covering "spouse, child or other dependent," the
Code provides that the penal sanction may be employed in all cases where the
support law establishes a duty of support.  The use of the word
"child" in this section is intended to cover all persons who have not
reached the age of majority.  The definition of support ensures that all forms
of care which are required by the support law are covered.  However, unlike the
previous law, which, on its face, would allow resort to prosecution in the
first instance of default, the Code requires that the default be persistent
before a prosecution can be successfully maintained.



 



SUPPLEMENTAL COMMENTARY ON §709-903



 



  The Proposed Draft had included "medical attention"
as one of the items of "support."  However, that was deleted by the
Legislature in 1972.  As stated in Conference Committee Report No. 2 (1972):



  "Your Committee has agreed to the deletion of the words
'medical attention' as a requisite of the term 'support' in order to avoid
penalizing the free exercise of certain religions."



 



Case Notes



 



  Reasonable to conclude that term "support" includes
medical attention and medical assistance, except where the exercise of religion
is involved.  8 H. App. 506, 810 P.2d 672.



 



__________



§709-903 Commentary:



 



1.  M.P.C., Tentative Draft No. 9, comments at 188 (1959).



 



2.  Id. at 188-189.



 



3.  H.R.S. §575-1.



 



4.  Id. §577-12.



 



5.  See id. §577-14 (semble).



 



6.  Id. §579-4.



 



7.  Id. §577-4.



 



8.  But see id. §571-2, which defines, for purposes of Chapter
571, "child" to mean "a person less than eighteen years of
age."