HRS 0707-0700 ANNOTATIONS

Definitions rearranged.

This section is definitional only and, of course, specifies no offense. A discussion of the definitions in this section, when needed or appropriate, is found in the commentary to the substantive offenses employing the terms defined.

With respect to Item (11), relating to the definition of "married", the Proposed Draft had recommended that "married" should also include "a male and female living together as man and wife regardless of their legal status." The Code as originally adopted in 1972 did not contain that recommended clause. However, by Act 136, Session Laws 1973, the clause was restored. The Legislature declared, "the definition of 'married' is amended to conform to the language of the proposed Draft of the Hawaii Penal Code as submitted by the Judicial Council of Hawaii and recognizes the prevalence of many male and female couples living together although not legally married." House Standing Committee Report No. 726.

Act 223, Session Laws 1980, amended the definitions of "sexual intercourse" and "forcible compulsion" to make their meanings less restrictive so as to bring more conduct within the scope of sexual offenses. It also deleted the definition of "female." This term was applicable only to the offense of rape, and it became superfluous when the offense was "de-sexed" in 1979.

Act 213, Session Laws 1981, sought to clarify the definition of "forcible compulsion." One of the primary changes was to delete the requirement that physical force be such as to "overcome resistance."

Act 314, Session Laws 1986, added the definition of "substantial bodily injury" to account for injuries far more serious than bodily injury--which includes any physical pain, illness, or impairment--but do not approximate the risk of death, permanent loss or disfigurement that constitute "serious bodily injury".

Act 314 also added the definition of "sexual penetration". That definition was enacted to express the legislature's intent that even though rape and sodomy are renamed as sexual assault offenses, prosecutors may still charge a defendant with multiple counts for each act of penetration. Conference Committee Report No. 51-86.

Act 181, Session Laws 1987, broadened the definitions of "sexual contact" by including touching of the sexual or other intimate parts through the clothing or other material intended to cover the sexual or intimate parts. Senate Standing Committee Report No. 1130.

Act 30, Session Laws 2001, amended the definition of "substantial bodily injury" by deleting the requirement that qualifying second degree burns be caused by chemical, electrical, friction, or scalding means. The legislature found that the definitions of many crimes include a requirement of "substantial bodily injury" and that defining that term too restrictively excludes from successful prosecution many otherwise criminal actions. The legislature supported the categorization of every second degree burn, regardless of origin, as a "substantial bodily injury". The legislature found that burns that are substantial bodily injuries are determined by the severity and degree, not by the nature or cause of the injuries. Senate Standing Committee Report No. 829, House Standing Committee Report No. 1220.

Forcible compulsion construed with respect to 18-month-old victim. 56 H. 664, 548 P.2d 271.

"Sexual intercourse" means coitus or bodily intrusions or penetrations which are malum in se. 66 H. 281, 660 P.2d 522.

"Serious bodily injury": "serious" modifies only "permanent disfigurement", not "protracted loss" phrase. 75 H. 419, 864 P.2d 583.

Definition of "sexual contact" not unconstitutionally overbroad as it does not interfere with the constitutionally protected activity of nude dancing; section permits dancing in the nude and allows customers to look at performers dancing in the nude; the conduct prohibited is the touching of sexual or intimate parts. 88 H. 19, 960 P.2d 1227.

Definition of "sexual contact" not unconstitutionally vague as it establishes a bright line rule "you can look but you can't touch", gives a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited, constitutes an explicit standard that avoids arbitrary and discriminatory enforcement and is not subjective. 88 H. 19, 960 P.2d 1227.

Under the plain meaning of §712-1200 and this section, touching the sexual or other intimate parts of another person, for a fee, constitutes prostitution, even if the touching occurs through clothing. 88 H. 19, 960 P.2d 1227.

A specific unanimity jury instruction was not required for offense of second degree unlawful imprisonment under §707-722 where defendant's conduct, as proved by the prosecution, constituted a continuing course of conduct "set on foot by a single impulse and operated by an unintermittent force", with "one general intent ... and one continuous plan". 95 H. 440, 24 P.3d 32.

"Bodily injury." 2 H. App. 19, 624 P.2d 1374.

"Mentally incapacitated"; consent vitiated by deception; based on the record, victim was "physically helpless". 5 H. App. 404, 696 P.2d 846.

"Mentally defective". 5 H. App. 659, 706 P.2d 1333.

When jury can infer handgun is dangerous. 5 H. App. 674, 706 P.2d 453.

Evidence of injuries sustained by victim struck in face with golf club, including broken facial and jaw bones, was sufficient to prove serious bodily injury. 8 H. App. 595, 817 P.2d 123.

In the terroristic threatening context, an instrument is a dangerous instrument, as defined in this section, when it is known to be capable of producing death or serious bodily injury when used in the manner it is threatened to be used. 10 H. App. 584, 880 P.2d 213.

Witness' testimony that witness was "sore" after being struck by appellant was sufficient to establish "physical pain" and thus, the element of "bodily injury" in assault charge. 79 H. 265 (App.), 900 P.2d 1332.

Section imposes requirement that laceration must be "major" in order to fall within definition of "substantial bodily injury". 82 H. 373 (App.), 922 P.2d 986.