§846E-1  Definitions.  As used in this
chapter, unless the context clearly requires otherwise:



"Agency having jurisdiction" means
that agency with the authority to direct the release of a person serving a
sentence or term of confinement or place a person on probation, supervised
release, or parole and includes the department of public safety, the Hawaii
paroling authority, the courts, and the department of health.



"Clean record" means no conviction
for a felony or covered offense, if placed on probation or parole, completion
of probation or parole without more than one revocation, and, for sex
offenders, successful completion of an appropriate sex offender treatment
program, if such program was ordered.



"Conviction" means a judgment on the
verdict, or a finding of guilt after a plea of guilty or nolo contendere,
excluding the adjudication of a minor.



"Covered offender" means a "sex
offender" or an "offender against minors", as defined in this
section.



"Covered offense" means a criminal
offense that is:



(1)  A crime within the definition of "crimes
against minors" in this section; or



(2)  A crime within the definition of "sexual
offense" in this section.



"Crime against minors" excludes
"sexual offenses" as defined in this section and means a criminal offense
that consists of:



(1)  Kidnapping of a minor, by someone other than a
parent;



(2)  Unlawful imprisonment in the first or second
degree that involves the unlawful imprisonment of a minor by someone other than
a parent;



(3)  An act, as described in chapter 705, that is an
attempt, criminal solicitation, or criminal conspiracy to commit one of the
offenses designated in paragraph (1) or (2); or



(4)  A criminal offense that is comparable to or which
exceeds one of the offenses designated in paragraphs (1) through (3) or any
federal, military, or out-of-state conviction for any offense that, under the
laws of this State would be a crime against minors as designated in paragraphs
(1) through (3).



"Mental abnormality" means a
condition involving a disposition to commit criminal sexual offenses with a
frequency that makes the person a menace to others.



"Offender against minors" means a
person who is not a "sex offender", as defined in this section, and
is or has been:



(1)  Convicted at any time, whether before or after
May 9, 2005, of a "crime against minors" as defined in this section;
or



(2)  Charged at any time, whether before or after May
9, 2005, with a "crime against minors" as defined in this section and
who is found unfit to proceed and is released into the community or who is
acquitted due to a physical or mental disease, disorder, or defect pursuant to
chapter 704 and is released into the community.



"Parent" means a parent, legal
guardian, or a person who has a substantial familial or hanai relationship with
the minor.



"Personality disorder" shall have the
same meaning as the term is used in the Diagnostic and Statistical Manual of
Mental Health Disorders:  DSM-IV, American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders (4th ed. 1994).



"Predatory" means an act directed at:



(1)  A stranger; or



(2)  A person with whom a relationship has been
established or promoted for the primary purpose of victimization.



"Registration information" means the
information specified in section 846E-2(d) and (e).



"Release" means release from:



(1)  Imprisonment;



(2)  Imprisonment and placed on parole;



(3)  Imprisonment and placed on furlough;



(4)  Any form of commitment, custody, or confinement
resulting from an order made pursuant to chapter 704; or



(5)  A halfway house or other equivalent facility,



whichever is later.



"Repeat covered offender" means:



(1)  A person who is or has been convicted at any
time, whether before or after May 9, 2005, of more than one covered offense as
defined in this section, except that a conviction for multiple counts within a
single charging document that allege covered offenses against the same victim
and that allege the same date of the covered offense against that single victim
shall be considered, for the purposes of this definition, a single covered
offense; or



(2)  A person who is or has been charged at any time,
whether before or after May 9, 2005, with more than one covered offense as
defined in this section and who has been, more than once, either:



(A)  Convicted;



(B)  Found unfit to proceed pursuant to chapter
704; or



(C)  Acquitted due to a physical or mental
disease, disorder, or defect pursuant to chapter 704.



"Sex offender" means:



(1)  A person who is or has been convicted at any
time, whether before or after May 9, 2005, of a "sexual offense"; or



(2)  A person who is or has been charged at any time,
whether before or after May 9, 2005, with a "sexual offense" and is
or has been found unfit to proceed and is or has been released into the
community or who is acquitted due to a physical or mental disease, disorder, or
defect pursuant to chapter 704 and is released into the community.



"Sexual offense" means an offense
that is:



(1)  Set forth in section 707-730(1)(a),
707-730(1)(b), 707-730(1)(c), 707-730(1)(d) or (e), 707-731(1)(a),
707-731(1)(b), 707-731(1)(c), 707-732(1)(a), 707-732(1)(b), 707-732(1)(c),
707-732(1)(d), 707-732(1)(e), 707-732(1)(f), 707-733(1)(a), 707-733.6,
712-1202(1)(b), or 712-1203(1)(b), but excludes conduct that is criminal only
because of the age of the victim, as provided in section 707-730(1)(b), or
section 707-732(1)(b) if the perpetrator is under the age of eighteen;



(2)  An act defined in section 707-720 if the charging
document for the offense for which there has been a conviction alleged intent
to subject the victim to a sexual offense;



(3)  An act that consists of:



(A)  Criminal sexual conduct toward a minor,
including but not limited to an offense set forth in section 707-759;



(B)  Solicitation of a minor who is less than
fourteen years old to engage in sexual conduct;



(C)  Use of a minor in a sexual performance;



(D)  Production, distribution, or possession of
child pornography chargeable as a felony under section 707-750, 707-751, or
707-752;



(E)  Electronic enticement of a child
chargeable under section 707-756 or 707-757 if the offense was committed with
the intent to promote or facilitate the commission of another covered offense
as defined in this section; or



(F)  Solicitation of a minor to practice
prostitution;



(4)  A criminal offense that is comparable to or that
exceeds a sexual offense as defined in paragraphs (1) through (3) or any
federal, military, or out-of-state conviction for any offense that under the
laws of this State would be a sexual offense as defined in paragraphs (1)
through (3); or



(5)  An act, as described in chapter 705, that is an
attempt, criminal solicitation, or criminal conspiracy to commit one of the
offenses designated in paragraphs (1) through (4). [L 1997, c 316, pt of §2; am
L 1998, c 194, §1; am L 2003, c 62, §3; am L 2004, c 59, §1; am L 2005, c 45,
§3; am L 2006, c 60, §5 and c 106, §1; am L 2008, c 80, §4; am L 2009, c 11,
§10]



 



Case Notes



 



  Indecent exposure, in violation of §707-734, does not
constitute an offense that entails "criminal sexual conduct" and,
consequently, persons convicted of indecent exposure are not "sex
offenders" for purposes of this chapter; thus, defendant was not required
to register as a "sex offender" pursuant to this chapter.  102 H.
383, 76 P.3d 935.



  Under article I, §5, of the Hawaii constitution, due process
requires that a convicted sex offender under this section be afforded the right
to a judicial hearing at which evidence may be offered to demonstrate that
continuance of all or part of the lifetime registration requirements are not
necessary in a particular case to fulfill the public need to which the sex
offender act responded.  105 H. 222, 96 P.3d 242.