PART IV. 
BRIBERY



 



§710-1040  Bribery.  (1)  A person
commits the offense of bribery if:



(a) The person confers, or offers or agrees to
confer, directly or indirectly, any pecuniary benefit upon a public servant
with the intent to influence the public servant's vote, opinion, judgment,
exercise of discretion, or other action in the public servant's official
capacity; or



(b) While a public servant, the person solicits,
accepts, or agrees to accept, directly or indirectly, any pecuniary benefit
with the intent that the person's vote, opinion, judgment, exercise of
discretion, or other action as a public servant will thereby be influenced.



(2)  It is a defense to a prosecution under
subsection (1) that the accused conferred or agreed to confer the pecuniary
benefit as a result of extortion or coercion.



(3)  For purposes of this section, "public
servant" includes in addition to persons who occupy the position of public
servant as defined in section 710-1000(15), persons who have been elected,
appointed, or designated to become a public servant although not yet occupying
that position.



(4)  Bribery is a class B felony.  A person
convicted of violating this section, notwithstanding any law to the contrary,
shall not be eligible for a deferred acceptance of guilty plea or nolo
contendere plea under chapter 853. [L 1972, c 9, pt of §1; gen ch 1993; am L
2006, c 230, §47]



 



COMMENTARY ON §710-1040



 



  In most cases, bribery subverts the efficient functioning of
the government to the benefit of a private individual, or a limited class of
individuals.  Efficiency is undermined because those choices and decisions
which are the job of public servants cease to be made solely on the basis of
merit, and hence the chance that the alternative most beneficial to the functioning
of the government, or to the people collectively, is decreased.  The pervasive
and far-reaching nature of this offense against public administration warrants
the class C felony sanction.



  Moreover, both parties to bribery are obviously to be considered
culpable, one no less than the other.  The victim of this offense is usually
the public in general, although in particular instances (particularly
competitive bid and judicial or quasi-judicial situations) individuals may
suffer more directly.  Subsection (1)(a) covers the offeror of the bribe, while
subsection (1)(b) covers the offeree.



  The defense provided for in subsection (2) is intended to
allow the actor who commits bribery as a result of extortion or coercion to
have the opportunity to raise these facts as a defense.  As with all defenses
in this Code which are not made affirmative, once the issue is raised, the
prosecution must negate it beyond a reasonable doubt.  It is questionable
whether the sections on duress (§702-231) or choice of evils (§703-302)
adequately cover this situation.  Therefore, the defense is specifically
provided for by this subsection.



  Previous Hawaii law recognized bribery as a criminal offense,
but treated bribe giving as a lesser offense than bribe receiving,[1] which
carried approximately the same penalty as that provided by the Code.  The Code
equalizes the penalties.  In defining the offense the Code requires that the
actor have the intent to influence or the intent to be influenced.  Previous
law required that, in case of bribery receiving, the actor act
"corruptly" and with an "understanding."  Under the Code,
intent is the relevant state of mind.  The Code requires that the actor
solicit, accept, or agree to accept the pecuniary benefit with intent that the
actor will thereby be influenced.  As in the inchoate offense of conspiracy,
the Code takes the unilateral approach to penal liability:  the offer may be
feigned, or made innocently, but if the receiver intended to be influenced
thereby liability attaches, notwithstanding an absence of an agreement or
understanding.



 



SUPPLEMENTAL COMMENTARY ON §710-1040



 



  Act 230, Session Laws 2006, amended bribery from a class C to
a class B felony, and provided that a person convicted of bribery shall not be
eligible for a deferred acceptance of guilty plea or nolo contendere plea under
chapter 853.



 



Case Notes



 



  Plaintiffs failed to establish genuine issue of fact whether
five million dollar gift to city and county of Honolulu was a bribe; plaintiffs
raised genuine issue of fact whether campaign contributions were bribes.  906
F. Supp. 1377.



 



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§710-1040 Commentary:



 



1.  Compare H.R.S. §725-1 with H.R.S. §725-2.