HRS 0703-0305 ANNOTATIONS

This section extends the defense of justification to include the use of physical force to protect another person on the same terms as the defense is available for the use of force in self- protection. The Code follows the Model Penal Code in allowing defense of others regardless of the relationship between the actor and the person being protected. It permits a person to use force to protect another person when the actor believes the other person would have been justified in using force to protect himself and he believes that his intervention is necessary to protect the other person. This formulation covers situations in which the other's infirmity, infancy, or other physical condition makes him especially unable to protect himself or susceptible to injury, even though the actor, in a similar predicament, might not himself have been justified in using force.

Subsection (2) provides certain exceptions and limitations. The actor need not retreat, surrender possession, or comply with a demand unless the actor knows the actor can thereby secure the complete safety of the other person. The actor must try to persuade the other person to retreat, surrender possession, or comply with a demand if the actor knows the actor can obtain the other's complete safety in that way. Finally, retreat is not required if the action takes place in the other's dwelling or place of business to any greater degree than is required in §703-304.

Hawaii case law shows only bare recognition of this type of justification.[1] The Code provides codification and elaboration.

Defendant entitled to consideration of justification defense no matter how weak, unsatisfactory or inconclusive the evidence appeared. 81 H. 142 (App.), 913 P.2d 553.

Defendant not justified in using protective force against complaining witness where, under circumstances as defendant believed them to be, a reasonable person would not reasonably believe person sought to be protected would be justified in using protective force against complaining witness. 81 H. 142 (App.), 913 P.2d 553.

Unborn children are not included within the definition of "another" or "person" for purposes of the Hawaii Penal Code; thus, defendant could not justify defendant's physical abuse of girlfriend on grounds that defendant was protecting "another" or a third person, specifically, defendant's unborn child. 101 H. 3 (App.), 61 P.3d 514.

§703-305 Commentary:

1. The King v. Bridges, 5 Haw. 467, 472 (1885); Territory v. Warren, 35 Haw. 232, 245 (1939); rehearing denied, 35 Haw. 252.