§709-906  Abuse of family or household
members; penalty.  (1)  It shall be unlawful for any person, singly or in
concert, to physically abuse a family or household member or to refuse
compliance with the lawful order of a police officer under subsection (4).  The
police, in investigating any complaint of abuse of a family or household
member, upon request, may transport the abused person to a hospital or safe
shelter.



For the purposes of this section, "family
or household member" means spouses or reciprocal beneficiaries, former
spouses or reciprocal beneficiaries, persons who have a child in common,
parents, children, persons related by consanguinity, and persons jointly
residing or formerly residing in the same dwelling unit.



(2)  Any police officer, with or without a
warrant, may arrest a person if the officer has reasonable grounds to believe
that the person is physically abusing, or has physically abused, a family or
household member and that the person arrested is guilty thereof.



(3)  A police officer who has reasonable
grounds to believe that the person is physically abusing, or has physically
abused, a family or household member shall prepare a written report.



(4)  Any police officer, with or without a
warrant, may take the following course of action where the officer has
reasonable grounds to believe that there was physical abuse or harm inflicted
by one person upon a family or household member, regardless of whether the
physical abuse or harm occurred in the officer's presence:



(a) The police officer may make reasonable inquiry of
the family or household member upon whom the officer believes physical abuse or
harm has been inflicted and other witnesses as there may be;



(b) Where the police officer has reasonable grounds
to believe that there is probable danger of further physical abuse or harm
being inflicted by one person upon a family or household member, the police
officer lawfully may order the person to leave the premises for a period of
separation of twenty-four hours, during which time the person shall not
initiate any contact, either by telephone or in person, with the family or
household member; provided that the person is allowed to enter the premises
with police escort to collect any necessary personal effects;



(c) Where the police officer makes the finding
referred to in paragraph (b) and the incident occurs after 12:00 p.m. on any
Friday, or on any Saturday, Sunday, or legal holiday, the order to leave the
premises and to initiate no further contact shall commence immediately and be in
full force, but the twenty-four hour period shall be enlarged and extended
until 4:30 p.m. on the first day following the weekend or legal holiday;



(d) All persons who are ordered to leave as stated
above shall be given a written warning citation stating the date, time, and
location of the warning and stating the penalties for violating the warning.  A
copy of the warning citation shall be retained by the police officer and
attached to a written report which shall be submitted in all cases.  A third copy
of the warning citation shall be given to the abused person;



(e) If the person so ordered refuses to comply with
the order to leave the premises or returns to the premises before the
expiration of the period of separation, or if the person so ordered initiates
any contact with the abused person, the person shall be placed under arrest for
the purpose of preventing further physical abuse or harm to the family or
household member; and



(f) The police officer may seize all firearms and
ammunition that the police officer has reasonable grounds to believe were used
or threatened to be used in the commission of an offense under this section.



(5)  Abuse of a family or household member and
refusal to comply with the lawful order of a police officer under subsection
(4) are misdemeanors and the person shall be sentenced as follows:



(a) For the first offense the person shall serve a
minimum jail sentence of forty-eight hours; and



(b) For a second offense that occurs within one year
of the first conviction, the person shall be termed a "repeat
offender" and serve a minimum jail sentence of thirty days.



Upon conviction and sentencing of the defendant, the
court shall order that the defendant immediately be incarcerated to serve the
mandatory minimum sentence imposed; provided that the defendant may be admitted
to bail pending appeal pursuant to chapter 804.  The court may stay the
imposition of the sentence if special circumstances exist.



(6)  Whenever a court sentences a person
pursuant to subsection (5), it also shall require that the offender undergo any
available domestic violence intervention programs ordered by the court. 
However, the court may suspend any portion of a jail sentence, except for the
mandatory sentences under subsection (5)(a) and (b), upon the condition that
the defendant remain arrest-free and conviction-free or complete court-ordered
intervention.



(7)  For a third or any subsequent offense that
occurs within two years of a second or subsequent conviction, the offense shall
be a class C felony.



(8)  Where the physical abuse consists of
intentionally or knowingly impeding the normal breathing or circulation of the
blood of the family or household member by applying pressure on the throat or
the neck, abuse of a family or household member is a class C felony.



(9)  Any police officer who arrests a person
pursuant to this section shall not be subject to any civil or criminal
liability; provided that the police officer acts in good faith, upon reasonable
belief, and does not exercise unreasonable force in effecting the arrest.



(10)  The family or household member who has
been physically abused or harmed by another person may petition the family
court, with the assistance of the prosecuting attorney of the applicable
county, for a penal summons or arrest warrant to issue forthwith or may file a
criminal complaint through the prosecuting attorney of the applicable county.



(11)  The respondent shall be taken into
custody and brought before the family court at the first possible opportunity. 
The court may dismiss the petition or hold the respondent in custody, subject
to bail.  Where the petition is not dismissed, a hearing shall be set.



(12)  This section shall not operate as a bar
against prosecution under any other section of this Code in lieu of prosecution
for abuse of a family or household member.



(13)  It shall be the duty of the prosecuting
attorney of the applicable county to assist any victim under this section in
the preparation of the penal summons or arrest warrant.



(14)  This section shall not preclude the
physically abused or harmed family or household member from pursuing any other
remedy under law or in equity.



(15)  When a person is ordered by the court to
undergo any domestic violence intervention, that person shall provide adequate
proof of compliance with the court's order.  The court shall order a subsequent
hearing at which the person is required to make an appearance, on a date
certain, to determine whether the person has completed the ordered domestic
violence intervention.  The court may waive the subsequent hearing and
appearance where a court officer has established that the person has completed
the intervention ordered by the court. [L 1973, c 189, §1; am L 1980, c 106, §1
and c 266, §2; am L 1981, c 82, §37; am L 1983, c 248, §1; am L 1985, c 143,
§1; am L 1986, c 244, §1; am L 1987, c 360, §1; am L 1991, c 215, §§2, 4 and c
257, §§1, 2; am L 1992, c 290, §7; am L 1994, c 182, §§1, 3; am L 1995, c 116,
§1; am L 1996, c 201, §2; am L 1997, c 321, §1, c 323, §1, and c 383, §70; am L
1998, c 172, §8; am L 1999, c 18, §18; am L 2002, c 5, §1; am L 2006, c 230,
§46]



 



Cross References



 



  Shelters, unlawful entry, see §708-816.5.



 



COMMENTARY ON §709-906



 



  This section was added by Act 189, Session Laws 1973, to
provide protection to a spouse from being physically abused by the other
spouse.  Standing Committee Report No. 828 (1973) states:



  "It is apparent today that there is little, if any,
protection for a spouse beaten by the other spouse....



  This bill is intended to alleviate this problem to a certain
extent.  A police officer, upon arrival at the scene, is given the power to
arrest if the offense is committed in his presence. Section 571-14(2)(B) gives
the family court exclusive jurisdiction over any adult charged with an offense,
other than a felony, against the person of the defendant's husband or wife.
Section 571-42 establishes the procedure to be followed in such cases.  It is
intended by your Committee that these laws be enforced to the extent that they
will afford the abused spouse the necessary protection needed.  Further, unless
it appears adverse to the best interests of all concerned, the family unity
should be retained without the necessity of the abusing spouse being branded a
'criminal.'  Toward this end, the courts are asked to aid these persons needing
its assistance in order that they may be rehabilitated."



 



SUPPLEMENTAL COMMENTARY ON §709-906



 



  Act 106, Session Laws 1980, amended subsection (1) to
authorize the police to transport the victim of spouse abuse to a safe place
when in the investigating officer's judgment it is reasonably necessary to do
so and there is no effective alternative transportation.  Senate Standing
Committee Report No. 667-80, House Standing Committee Report No. 875-80.



  Act 266, Session Laws 1980, amended subsections (2) and (3)
to authorize a police officer to make an arrest or take the actions specified
in subsection (3) regardless of whether the physical abuse occurred in the
officer's presence or not.  The changes to this section and the enactment of
§709-907 were intended to expand the protection and remedies available to a
spouse who is the victim of non-felonious offense against the person committed
by the other spouse.  While recognizing the expertise of the family court, the
conference committee stated that "your Committee is concerned that family
court administrative policies may be diverting an inordinate number of
petitions for summonses to counseling, and respectfully recommends that the
court review its policy to ensure that the remedy the law creates not be
vitiated by undue reluctance to employ it."  Conference Committee Report
No. 29-80 (33-80).



  Act 82, Session Laws 1981, substituted "the abused
person" for "such person" in the last sentence of subsection (1)
for purposes of clarity.



  Act 248, Session Laws 1983, amended this section and repealed
§709-907.  Two of the changes made in this section were intended to encourage
more immediate police action in spouse abuse cases:  the removal of the
requirement that "substantial" physical harm to a spouse occur before
police can act and the granting of civil immunity to police who act in good
faith when arresting persons for spouse abuse.  Along with other changes, these
changes were felt to "greatly assist in dealing with spouse abuse." 
The section was also amended to substitute sex-neutral terms for gender-based
language.  Senate Standing Committee Report No. 793.



  Act 143, Session Laws 1985, amended the spouse abuse law to:
(1) require police to prepare a written report if there are reasonable grounds
to believe that abuse exists; (2) increase the "cooling off" period
to twelve hours; (3) require the arrest of the abuser who refuses to leave the
premises when ordered by police or who returns before the "cooling
off" period expires; (4) mandate a minimum 48-hour jail term and
counseling and treatment of a convicted abuser; and (5) extend coverage of the
law to protect family or household members from abuse.  These changes are
intended to effectively address and combat family violence and its effect on
the community.  Senate Conference Committee Report No. 6, House Conference
Committee Report No. 15.



  Act 244, Session Laws 1986, required police to issue written
citations to abusive persons ordered to leave the premises of a family or
household for a cooling off period.  The written citation would accomplish a
number of purposes.  First, it informs the abusive person of the conditions of
the cooling off period.  Second, the citation helps insure that the cooling off
period is observed.  Third, responding police may use the citation as an
efficient means of transmitting information to police on subsequent shifts who
are resummoned to the same household where the abuse occurred.  Finally, the
citation eases prosecution of the abusive person since it records the exact
facts of the alleged abuse and provides proof that the defendant was notified
of the conditions of the cooling off period.  House Standing Committee Report
No. 518-86, Senate Standing Committee Report No. 940-86.



  Act 360, Session Laws 1987, changed the time period before
which a person convicted under this section may apply for an order to expunge
their records, from one year to five years.  The legislature found that the
five year period would cover a crucial period in which reabuse is frequent. 
The legislature stated a five year period would provide a more realistic time
period in which a person may demonstrate that expungement is warranted.  Senate
Standing Committee Report Nos. 879 and 1126.



  Act 290, Session Laws 1992, amended this section by providing
that for the first offense of the abuse of a household member the person shall
serve a minimum jail sentence of forty-eight hours, and, for subsequent
offenses occurring within one year of the previous offense, the person shall be
termed a "repeat offender" and serve a minimum jail sentence of
thirty days.  Conference Committee Report No. 122.



  Act 182, Session Laws 1994, amended this section to provide
for a twenty-four hour cooling off period and to extend the cooling off period
until the first day following a weekend or legal holiday.  Conference Committee
Report No. 50.



  Act 116, Session Laws 1995, deleted the repeal date of the
amendment to this section made by Act 182, Session Laws 1994, which provided
for a twenty-four hour cooling off period.  The legislature found that the
cooling off period imposed by the police in certain circumstances was very
successful in preventing further domestic violence; the cooling off period
created a "safe" period during which abuse victims might seek refuge
in a shelter or use other safety options.  Making the twenty-four hour cooling
off period a permanent requirement would allow the police to continue to use
the cooling off period to prevent domestic abuse.  House Standing Committee
Report No. 1566.



  Act 321, Session Laws 1997, amended this section by deleting
subsection (13) to eliminate the possibility of expungement of records relating
to a person's arrest, trial, conviction, dismissal, or discharge involving
abuse of a family or household member.  The legislature found that domestic
violence was a serious crime affecting many families in the community, and for
which perpetrators must be held accountable.  Further, the repetitive and
retaliatory nature of domestic violence required accurate and complete
documentation of a perpetrator's history for the future safety of the victim
and the victim's family.  Senate Standing Committee Report No. 1553.



  Act 323, Session Laws 1997, amended subsection (4) by
prohibiting contact with a victim of domestic violence, regardless of location,
during the "cooling off" period.  The Act prohibited the perpetrator
of domestic violence from "initiating" contact with the victim so
that a violation of subsection (4) was avoided in the event that the victim had
reason to contact the perpetrator.  The legislature found that the provisions
regarding the "cooling off" orders issued by police have had a
significant impact in denying domestic violence perpetrators access to their
victims.  However, its success has been limited in part by the fact that the
protection extends only to the premises and not to the victims themselves or to
other locations that might be important to the victims, such as their place of
employment.  The legislature believed that extending the temporary protective
legal shield to victims, regardless of their location, would remedy the
problem.  House Standing Committee Report No. 1481.



  Act 383, Session Laws 1997, amended this section by amending
the definition of "family or household member" to include reciprocal
beneficiaries and former reciprocal beneficiaries.  The amendment establishes
the status of reciprocal beneficiaries and provides rights and benefits to
those with that status.  Among the benefits extended to reciprocal beneficiaries
which are substantially equivalent to those extended to spouses is legal
standing relating to domestic violence family status.  Conference Committee
Report No. 2.



  Act 172, Session Laws 1998, amended this section by, among
other things, adding persons who have a child in common to the definition of
"family or household member", changing the term "cooling off
period" to "period of separation", and making the third offense
of abuse of family or household member within two years of the second conviction
a felony.  Act 172 also amended the section to require that defendants
convicted of abuse of family or household member be immediately incarcerated,
clarifying that the amendment did not affect the defendant's right to bail
pending appeal pursuant to chapter 804, and that the court, upon a finding of
special circumstances, may stay the imposition of the jail term.



  Additionally, Act 172 deleted "recent" with respect
to police issuance of twenty-four hour warnings.  Under current law, if a
police officer had reasonable grounds to believe that there was recent physical
abuse or harm, the officer may order the abuser to leave the premises for a
cooling off period of twenty-four hours.  The legislature found that police
officers responding to a domestic violence complaint had to make quick
decisions on whether or not to remove an abuser from a home.  The decision was
often delayed because an officer had to interpret how "recently" the
physical abuse occurred.  Deleting the ambiguous term would result in more
twenty-four hour warnings, thereby protecting more victims of domestic abuse.



  Act 172 also substituted the phrase "domestic violence
intervention" for "domestic violence treatment or counseling";
the change reflected the current language in the domestic violence community. 
Conference Committee Report No. 80, House Standing Committee Report No. 578-98.



  Act 5, Session Laws 2002, amended this section to clarify the
sentencing provisions in domestic abuse cases to delete overlapping references
to first, second, third, and subsequent convictions.  The Hawaii supreme court
in State v. Modica, 58 H. 249 (1977), held that a defendant's due process and
equal protection rights are violated if the defendant is convicted of a felony,
when the same act committed under the same circumstances could also have been
punished as a misdemeanor under another statute, and the elements of proof
essential to either conviction are exactly the same.  Subsection (5)(b) made it
a misdemeanor for second and subsequent offenses of abuse of a family member
that occur within one year of the previous offense.  Subsection (7) made it a
class C felony for any subsequent offense occurring within two years after a
second misdemeanor conviction.  Under those provisions, subsequent offenses
after a second offense could be charged either as a felony or misdemeanor.  A
potential constitutional problem existed under State v. Modica.  Act 5 remedied
the potential defect by limiting misdemeanors to the first and second offense,
while making it a class C felony for any third and subsequent offense. Senate
Standing Committee Report No. 2949, House Standing Committee Report No. 540-02.



  Act 230, Session Laws 2006, amended this section by adding
strangulation as abuse of a family or household member and making it a class C
felony.  House Standing Committee Report No. 665-06.



 



Law Journals and Reviews



 



  Essay:  When Less Is More--Can Reducing Penalties Reduce
Household Violence?  19 UH L. Rev. 37.



 



Case Notes



 



  Term "physical abuse" is not vague or overbroad. 
69 H. 620, 753 P.2d 1250.



  Refusal to sign the twelve hour warning was not a crime.  71
H. 53, 781 P.2d 1041.



  Mutual affray is not a defense.  71 H. 165, 785 P.2d 1320.



  Statute is not unconstitutionally vague or overbroad; victim
residing in the same dwelling with defendant for fourteen weeks in another
person's house was considered a "family or household member."  71 H.
479, 795 P.2d 280.



  Not violated by parent who hit child with belt.  72 H. 241,
813 P.2d 1382.



  Constitutional right to confrontation violated.  72 H. 469,
822 P.2d 519.



  Trial court's imposition of sentence based solely on
unsupported finding that "victim lied for the defendant"
unconstitutionally punished defendant for an uncharged crime.  72 H. 521, 824
P.2d 837.



  Because a person convicted of offense may be imprisoned for
up to one year, the court had a duty to inform defendant of defendant's right
to trial by jury in order to ensure a knowing and voluntary waiver of that
right.  75 H. 118, 857 P.2d 576.



  Prosecution not precluded by principles of double jeopardy
from re-trying defendant, where testimony constituted substantial evidence
supporting trial court's conviction.  75 H. 118, 857 P.2d 576.



  Double jeopardy clause of Hawaii constitution barred unlawful
imprisonment but not terroristic threatening prosecution of defendant who had
been found guilty of abuse under this section.  75 H. 446, 865 P.2d 150.



  Absence of any evidence in the record that defendant and
complaining witness were family or household members recognized as plain error
necessitating reversal of defendant's conviction.  78 H. 185, 891 P.2d 272.



  Requisite state of mind for violation of subsection (1) is
intentionally, knowingly, or recklessly; prosecution need only prove
recklessness.  81 H. 131, 913 P.2d 57.



  Substantial evidence proved defendant consciously disregarded
substantial and unjustifiable risk of physically abusing wife by slapping her
on side of head.  81 H. 131, 913 P.2d 57.



  As §§701-101, 701-102, 701-107, and 701-108, construed
together, establish that the term "offense", as employed by the
Hawaii Penal Code, refers to the commission of the crime or violation and not
to the procedural events that transpire as a result of that commission, the
plain meaning of  "offense", as employed in subsection (5), precludes
an interpretation equating it with the term "conviction".  90 H. 262,
978 P.2d 700.



  Defendant's second offense was "subsequent" to the
first offense within plain meaning of subsection (5)(b) where brief interval
separated both offenses.  90 H. 262, 978 P.2d 700.



  In order to prove a prior offense in order to justify an
enhanced sentence for a "second" or "subsequent" offense
pursuant to subsection (5), the prosecution must adduce evidence of a
conviction of the prior offense.  90 H. 262, 978 P.2d 700.



  Subsection (5) does not require that a "second" or 
"subsequent" offense occur on a separate day.  90 H. 262, 978 P.2d
700.



  Section not unconstitutional as State has a legitimate
interest in protecting the health, safety and welfare of its citizens,
enactment of this section to address family violence within the community is
"legitimate" in protecting Hawaii's citizens, and as including family
and household members within scope of this section may reduce or deter family violence
by imposing upon violators greater criminal punishment than criminal assault,
it is rationally related to the State's interest in preventing incidents of
family violence.  93 H. 63, 996 P.2d 268.



  Under either §701-109(4)(a) or (4)(c), a petty misdemeanor
assault under §707-712(2) is not a lesser included offense of family abuse
under this section.  93 H. 63, 996 P.2d 268.



  Evidence was of sufficient quality and probative value to
support the conclusion that defendant intentionally, knowingly or recklessly
maltreated girlfriend where witness heard slapping noises and a "hard
thug" and later found girlfriend "shook up, kind of scared and half
beaten", and responding officers observed that girlfriend had sustained
injuries to her face and right shoulder, and had reported to officer that
defendant held her neck against the couch and punched her in the face.  115 H.
503, 168 P.3d 955.



  Defendant's right to have all elements of an offense proven
beyond a reasonable doubt was statutorily protected under §701-114 and
constitutionally protected under the Hawaii and federal constitutions; as only
defendant personally could have waived such fundamental right and such right
could not have been waived or stipulated to by defendant's counsel, stipulation
by defendant's counsel of the fact that defendant committed defendant's crime
within two years of a second or prior conviction of abuse for purposes of the
subsection (7) charge violated defendant's due process rights.  116 H. 3, 169
P.3d 955.



  Pursuant to the definition of "element" set forth
in §702-205, the prior conviction reference in subsection (7) constitutes an
element of the offense of the felony abuse charge.  116 H. 3, 169 P.3d 955.



  Where a defendant has stipulated to the prior conviction
element of an offense under subsection (7), the trial court must instruct the
jury, inter alia, that the stipulation is evidence only of the prior conviction
element, the prior conviction element of the charged offense must be taken as
conclusively proven, the jury is not to speculate as to the nature of the prior
convictions, and the jury must not consider defendant's stipulation for any
other purpose.  116 H. 3, 169 P.3d 955.



  Police not authorized to order domestic disputants to
separate except as specified in this section.  7 H. App. 28, 742 P.2d 388.



  Where extended family lives together as a common household,
defendant and daughter-in-law were "residing in the same dwelling
unit".  9 H. App. 325, 839 P.2d 530.



  When family court implicitly entered a deferred acceptance of
guilty plea pursuant to §853-1 and conditioned deferral upon defendant's
submitting to counseling according to schedule and not committing any
subsequent offenses, family court violated §853-4(2), where defendant was
charged with abuse of family and household members.  10 H. App. 148, 861 P.2d
759.



  The fact that defendant was a "family or household
member" for purposes of this section did not satisfy §571-14(1)'s subject
matter jurisdiction factual criteria because a "family or household member"
is not by that fact "the child's parent or guardian or ... any
other person having the child's legal or physical custody".  77 H. 260
(App.), 883 P.2d 682.



  In subsection (1), to "physically abuse" someone
means to maltreat in such a manner as to cause injury, hurt, or damage to that
person's body.  79 H. 413 (App.), 903 P.2d 718.



  As defendant's striking of husband did actually cause harm
sought to be prevented by this section, no abuse of discretion where trial
court holds that infraction not too trivial to warrant the condemnation of
conviction under §702-236.  79 H. 419 (App.), 903 P.2d 723.



  Insufficient evidence to convict under this section where
evidence only showed that victim was injured and defendant's statement of
wanting to apologize was not necessarily for the violative conduct.  80 H. 469
(App.), 911 P.2d 104.



  Alleged abuse or harm inflicted less than one day earlier was
"recent" under this section (1992).  82 H. 381 (App.), 922 P.2d 994.



  Complainant's out-of-court statements not hearsay under HRE
rule 801 where offered by State not for their truth, but to show that police
had reasonable grounds under this section to issue warning citation which
defendant subsequently violated.  82 H. 381 (App.), 922 P.2d 994.



  "Reasonable grounds" standard in subsection (4) not
unconstitutionally vague where standard is an objective standard requiring a
trial court to independently assess facts and circumstances which responding
officers had before them in determining to issue warning citations.  82 H. 381
(App.), 922 P.2d 994.



  Subsection (4) not unconstitutionally overbroad as issuance
of warning citation must be based on objective facts and circumstances, other
than merely a complainant's claim, which would lead a reasonable police officer
to believe recent physical abuse was inflicted on family or household member. 
82 H. 381 (App.), 922 P.2d 994.



  An uncorroborated prior inconsistent statement of a family or
household member offered under HRE rule 613 and HRE rule 802.1 as substantive
evidence of the facts stated therein may be sufficient, if believed, to
establish physical abuse and the manner in which such abuse was inflicted in a
prosecution for physical abuse of a family or household member under this
section.  84 H. 253 (App.), 933 P.2d 90.



  Where defendant lived with victim at victim's residence
"probably three to four nights a week", defendant and victim were
"persons jointly residing or formerly residing in the same dwelling
unit".  85 H. 512 (App.), 946 P.2d 620.



  Legislature intended that a written warning citation be given
to a person prior to person being charged with violating this section; trial
court's failure to instruct the jury that the State was required to prove
beyond a reasonable doubt that the officer issued a written warning citation to
defendant prior to defendant's arrest was therefore prejudicially erroneous. 
96 H. 42 (App.), 25 P.3d 817.



  Where there was no substantial evidence that defendant
received the written warning citation as required by subsection (4) prior to
defendant's arrest for violation of the warning citation, conviction reversed. 
96 H. 42 (App.), 25 P.3d 817.



  There was insufficient evidence to show that the police had
reasonable grounds to believe that there was physical abuse or harm inflicted
by defendant on complainant where complainant testified that there was
"pushing and shoving between her and the defendant".  106 H. 381
(App.), 105 P.3d 258.



  Discussed:  474 F.3d 561.