PART II. 
OFFENSES RELATED TO OBSCENITY



 



§712-1210  Definitions of terms in this
part.  In this part, unless a different meaning is required:



"Age verification records of sexually
exploited individuals" means individually identifiable records pertaining to
every sexually exploited individual provided to patrons or customers of a
public establishment or in a private club or event. Such records shall include:



(1)  Each sexually exploited individual's name and
date of birth, as ascertained by an examination of the individual's valid
driver's license, official state identification card, or passport;



(2)  A certified copy of each sexually exploited
individual's driver's license, official state identification card, or passport;
and



(3)  Any name ever used by each sexually exploited
individual including but not limited to maiden name, aliases, nicknames, stage
names, or professional names.



"Age verification records of sexual
performers" means individually identifiable records pertaining to every
sexual performer portrayed in a visual depiction of sexual conduct, which
include:



(1)  Each performer's name and date of birth, as
ascertained by the producer's personal examination of a performer's valid
driver's license, official state identification card, or passport;



(2)  A certified copy of each performer's valid
driver's license, official state identification card, or passport; and



(3)  Any name ever used by each performer including,
but not limited to, maiden name, alias, nickname, stage name, or professional
name.



"Community standards" means the
standards of the State.



"Disseminate" means to manufacture,
issue, publish, sell, lend, distribute, transmit, exhibit, or present material
or to offer or agree to do the same.



"Erotic or nude massager" means a
nude person providing massage services with or without a license.



"Exotic or nude dancer" means a
person performing, dancing, or entertaining in the nude, and includes patrons
participating in a contest or receiving instruction in nude dancing.



"Intent to profit" means the intent
to obtain monetary gain.



"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, drawings, sculptures, and tape or wire recordings.



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



"Nude" means unclothed or in attire,
including but not limited to sheer or see-through attire, so as to expose to
view any portion of the pubic hair, anus, cleft of the buttocks, genitals or
any portion of the female breast below the top of the areola.



"Performance" means any play, motion
picture film, dance, or other exhibition performed before an audience.



"Pornographic."  Any material or
performance is "pornographic" if all of the following coalesce:



(a) The average person, applying contemporary
community standards would find that, taken as a whole, it appeals to the
prurient interest.



(b) It depicts or describes sexual conduct in a
patently offensive way.



(c) Taken as a whole, it lacks serious literary,
artistic, political, or scientific merit.



"Pornographic for minors."  Any
material or performance is "pornographic for minors" if:



(1)  It is primarily devoted to explicit and detailed
narrative accounts of sexual excitement, sexual conduct, or sadomasochistic
abuse; and:



(a)  It is presented in such a manner that the
average person applying contemporary community standards, would find that,
taken as a whole, it appeals to a minor's prurient interest; and



(b)  Taken as a whole, it lacks serious
literary, artistic, political, or scientific value; or



(2)  It contains any photograph, drawing, or similar
visual representation of any person of the age of puberty or older revealing
such person with less than a fully opaque covering of his or her genitals and
pubic area, or depicting such person in a state of sexual excitement or engaged
in acts of sexual conduct or sadomasochistic abuse; and:



(a)  It is presented in such a manner that the
average person, applying contemporary community standards, would find that,
taken as a whole, it appeals to a minor's prurient interest; and



(b)  Taken as a whole, it lacks serious
literary, artistic, political, or scientific value.



"Produces" means to manufacture or
publish any pornographic performance, book, magazine, periodical, film,
videotape, computer image, or other similar matter and includes the
duplication, reproduction, or reissuing of any such matter, but does not
include mere distribution or any other activity that does not involve hiring,
contracting for, managing, or otherwise arranging for the participation of the
performers depicted.



"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 intercourse or
physical contact with a person's clothed or unclothed genitals, pubic area,
buttocks, or the breast or breasts of a female for the purpose of sexual stimulation,
gratification, or perversion.



"Sexual excitement" means the
condition of the human male or female genitals when in a state of sexual
stimulation or arousal.



"Sexually exploited individuals"
means erotic or nude massagers and exotic or nude dancers.



"Sexual performer" includes any
person portrayed in a pornographic visual depiction engaging in, or assisting
another person to engage in, sexual conduct. [L 1972, c 9, pt of §1; am L 1981,
c 106, §1; am L 2002, c 240, §4; am L 2005 c 10, §1]



 



COMMENTARY ON §712-1210



 



  Act 106, Session Laws 1981, added the definition of
"community standards," to mean a statewide standard.  It also amended
the definitions of "pornographic" and "pornographic to
minors."  The conference committee stated in its report (Senate Conference
Committee Report No. 14 and House Conference Committee Report No. 12) that the
amendments were merely to conform the definitions to the holdings of the United
States Supreme Court in Miller v. California, 413 U.S. 15 (1973) and the Hawaii
Supreme Court in State v. Manzo, 58 Haw. 440 (1978).



  Act 240, Session Laws 2002, amended this section by adding
definitions to comport with sexual exploitation of a minor offenses created by
the Act.



  Act 10, Session Laws 2005, amended this section by repealing
the superfluous definition of "sexual conduct" added by Act 240,
Session Laws 2002.  This section already provided a sufficient definition of
"sexual conduct".  House Standing Committee Report No. 1281.



 



Law Journals and Reviews



 



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



 



Case Notes



 



  Grand jury was presented with sufficient information to
determine the existence of probable cause that material distributed to minor by
defendant was pornographic for minors under paragraph (7)(a).  82 H. 474, 923
P.2d 891.



  Based on the plain language and legislative history of
§707-700 and construing the definition of "sexual contact" with
reference to other definitions relating to sexual relations in §707-700 and
this section, contact with the interior of the mouth constitutes "touching
of intimate parts" under the definition of "sexual contact" in
§707-700.  108 H. 279, 118 P.3d 1222.



 



Pornographic.



  Construed; provision not unconstitutional for overbreadth or
void for vagueness.  58 H. 440, 573 P.2d 945.



  Material held to be "utterly without redeeming social
value."  63 H. 418, 629 P.2d 1130.



  Cited:  413 U.S. 15, 93 S.Ct. 2607.