HRS 0707-0734 ANNOTATIONS

Defendant did not act intentionally under circumstances likely to cause affront by exposing defendant's genitals to a fellow sunbather where, since other sunbather was also nude, there was no logical or rational basis for concluding that defendant intended to cause affront to other sunbather. 94 H. 60, 8 P.3d 1224.

No double jeopardy for convictions under this section and §712-1217. 8 H. App. 535, 813 P.2d 335.

The Proposed Draft of this section was cited in State v. Rocker, 52 H. 336, 475 P.2d 684 (1970).

Distinguished from open lewdness statute, §712-1217. 61 H. 62, 597 P.2d 10.

Act 314, Session Laws 1986, incorporated all of the sexual offenses into five degrees of sexual assault. These new crimes comprise a graduated series of offenses from a class A felony to a petty misdemeanor, providing punishment reflecting the seriousness of the offense committed. As a result of the changes the "voluntary social companion" distinction no longer exists between what was first and second degree rape and sodomy. Conference Committee Report No. 51-86.

Act 214, Session Laws 1991, amended §707-733 by providing that a person commits fourth degree sexual assault if that person knowingly trespasses on property for the purpose of surreptitious surveillance. This will avoid prosecuting innocent passersby and distinguishes this offense from simple trespass. Conference Committee Report No. 44.

Act 214, Session Laws 1991, renamed §707-734 from sexual assault in the fifth degree to indecent exposure which is intended to deal with behavior such as nude sunbathing or streaking, which is likely to be an affront to a substantial part of the community. Senate Committee Report No. 1000.

Act 366, Session Laws 1997, amended §707-731 to extend the existing prohibition of sexual penetration of a prisoner by a corrections officer to a general prohibition of sexual penetration of any arrested or detained person by a law enforcement officer. The legislature found that under current law, adult corrections officers are held to a higher standard of conduct in relation to their prisoners than police officers. The legislature further found that existing law recognized that a person in custody was in no position to consent to an act of sexual penetration by those incarcerating them. Thus, the legislature believed that the policy of preventing coercion by correctional officers for sexual favors from inmates and to prevent inmates from using sex to extort favors from correctional officers should be extended to all law enforcement officers. Senate Standing Committee Report No. 767, House Standing Committee Report No. 1217.

Act 379, Session Laws 1997, added §707-733.5, creating a new class A felony offense known as continuous sexual assault of a minor under the age of fourteen years, which provides specific circumstances under which sexual assault of a minor under the age of fourteen years is deemed a continuing offense. The legislature found that public safety demanded immediate action against sex offenders who prey on children by taking advantage of their relationship of trust with respect to the minor. According to statistics, sexual assault against minors is an offense in which an overwhelming majority of minor victims knew their perpetrator. The legislature further found that these types of cases are often difficult to prosecute given that molesters who reside in the same household with children sexually abuse their victim over an extended period of time. The child often has difficulty remembering or identifying the specific dates on which the child was molested and may even repress the memory of events. Senate Standing Committee Report No. 1594, Conference Committee Report No. 28.

Act 1, Second Special Session Laws 2001, amended §§707-730 and 707-732 to require, for the offenses of sexual assault in the first degree and sexual assault in the third degree, that the minor be at least fourteen years old but less than sixteen years old, and the defendant be at least five years older than the minor and not married to the minor. The legislature found that, in many cases, minors lacked the capacity to understand the responsibilities and ramifications of engaging in a sexual relationship with adults. Current law allowed adults to enter into consensual sexual relationships with minors as young as fourteen years old without penalty. The legislature believed that these minors were unfairly burdened with the presumption of knowing the consequences of engaging in sexual relations with an adult, and that the Act would protect Hawaii's children from harmful sexual relationships with adults. Conference Committee Report No. 66, Senate Standing Committee Report No. 1394.

Act 36, Session Laws 2002, amended §§707-731 and 707-732 to prohibit private company employees at correctional facilities or in other residential services under the director of public safety from knowingly subjecting imprisoned persons to sexual contact or sexual penetration. The legislature found inmates particularly vulnerable to sexual assaults from employees at correctional facilities. Private employees associated with the prison system were in the same position of authority as state employees over the inmates they supervised.

The legislature found that although current state law prohibited sexual assaults against inmates in Hawaii correctional facilities, no reference was made to correctional facilities operated by private companies. The legislature further found that the law could be construed to exclude acts by employees of private companies working in state correctional facilities. Act 36 addressed this "loophole" in the law by ensuring that sexual offenses committed by any correctional facility employee against inmates were prohibited, regardless of the employer's status as a public or private facility. House Standing Committee Report No. 696-02, Senate Standing Committee Report No. 3162.

Act 62, Session Laws 2003, amended §§707-730 and 707-732 by removing the sunset provision of Act 1, Second Special Session Laws 2001, which raised the age at which a person can consent to sexual contact from fourteen to sixteen years of age in most cases. Act 62 made permanent the provisions that raised the age of consent to sixteen in most cases. House Standing Committee Report No. 568.