REPORT TITLE:
Child Protection


DESCRIPTION:
Creates new penalties for child abuse.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2114
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO CHILDREN.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The legislature finds that children are Hawaii's
 
 2 most precious asset.  To protect them from the injustice of abuse
 
 3 and neglect, the legislature formed a legislative roundtable to
 
 4 suggest statutes, guidelines, rules, regulations, and other
 
 5 changes to improve Hawaii's child protection system.  From these
 
 6 discussions, the legislature found, among other things, that a
 
 7 key factor in preventing child abuse is through deterrence,
 
 8 namely, harsher criminal penalties for child abusers.
 
 9      The purpose of this Act is to toughen Hawaii's criminal laws
 
10 for perpetrators of child abuse.
 
11      SECTION 2.  Chapter 707, Hawaii Revised Statutes, is amended
 
12 by adding three new sections to be appropriately designated and
 
13 to read as follows:
 
14      "§707-    Child abuse in the first degree.  (1)  A person
 
15 commits the offense of child abuse in the first degree if the
 
16 person intentionally or knowingly causes serious bodily injury to
 
17 a minor twelve years of age or younger.
 
18      (2)  Child abuse in the first degree is a class A felony.
 

 
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 1      §707-     Child abuse in the second degree.  (1)  A person
 
 2 commits the offense of child abuse in the second degree if:
 
 3      (a)  The person intentionally or knowingly causes
 
 4           substantial bodily injury to a minor twelve years of
 
 5           age or younger; or
 
 6      (b)  The person recklessly causes serious bodily injury to a
 
 7           minor twelve years of age or younger.
 
 8      (2)  Child abuse in the second degree is a class B felony.
 
 9      §707-     Child abuse in the third degree.  (1)  A person
 
10 commits the offense of child abuse in the third degree if the
 
11 person recklessly causes substantial bodily injury to a minor
 
12 twelve years of age or younger.
 
13      (2)  Child abuse in the third degree is a class C felony."
 
14      SECTION 3.  Section 703-309, Hawaii Revised Statutes, is
 
15 amended to read as follows:
 
16      "§703-309  Use of force by persons with special
 
17 responsibility for care, discipline, or safety of others.  The
 
18 use of force upon or toward the person of another is justifiable
 
19 under the following circumstances:
 
20      (1)  The actor is the parent or guardian or other person
 
21           similarly responsible for the general care and
 
22           supervision of a minor, or a person acting at the
 
23           request of the parent, guardian, or other responsible
 
24           person, and:
 

 
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 1           (a)  The force is employed with due regard for the age
 
 2                [and], size, and condition of the minor and is
 
 3                reasonably related to the purpose of safeguarding
 
 4                or promoting the welfare of the minor, including
 
 5                the prevention or punishment of the minor's
 
 6                misconduct; and
 
 7           (b)  The force used is not designed to cause or known
 
 8                to create a risk of causing substantial bodily
 
 9                injury, disfigurement, extreme pain or mental
 
10                distress, or neurological damage[.];
 
11      (2)  The actor is a teacher or a person otherwise entrusted
 
12           with the care or supervision for a special purpose of a
 
13           minor, and:
 
14           (a)  The actor believes that the force used is
 
15                necessary to further that special purpose,
 
16                including maintenance of reasonable discipline in
 
17                a school, class, or other group, and that the use
 
18                of force is consistent with the welfare of the
 
19                minor; and
 
20           (b)  The degree of force, if it had been used by the
 
21                parent or guardian of the minor, would not be
 
22                unjustifiable under paragraph (1)(b)[.];
 

 
 
 
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 1      (3)  The actor is the guardian or other person similarly
 
 2           responsible for the general care and supervision of an
 
 3           incompetent person, and:
 
 4           (a)  The force is employed with due regard for the age
 
 5                and size of the incompetent person and is
 
 6                reasonably related to the purpose of safeguarding
 
 7                or promoting the welfare of the incompetent
 
 8                person, including the prevention of the
 
 9                incompetent person's misconduct[,] or, when such
 
10                incompetent person is in a hospital or other
 
11                institution for the incompetent person's care and
 
12                custody, for the maintenance of reasonable
 
13                discipline in the institution; and
 
14           (b)  The force used is not designed to cause or known
 
15                to create a risk of causing substantial bodily
 
16                injury, disfigurement, extreme pain or mental
 
17                distress, or neurological damage[.];
 
18      (4)  The actor is a doctor or other therapist or a person
 
19           assisting the doctor or therapist at the doctor's or
 
20           therapist's direction, and:
 
21           (a)  The force is used for the purpose of administering
 
22                a recognized form of treatment which the actor
 
23                believes to be adapted to promoting the physical
 
24                or mental health of the patient; and
 

 
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 1           (b)  The treatment is administered with the consent of
 
 2                the patient[,] or, if the patient is a minor or an
 
 3                incompetent person, with the consent of the
 
 4                minor's or incompetent person's parent or guardian
 
 5                or other person legally competent to consent in
 
 6                the minor's or incompetent person's behalf, or the
 
 7                treatment is administered in an emergency when the
 
 8                actor believes that no one competent to consent
 
 9                can be consulted and that a reasonable person,
 
10                wishing to safeguard the welfare of the patient,
 
11                would consent[.];
 
12      (5)  The actor is a warden or other authorized official of a
 
13           correctional institution, and:
 
14           (a)  The actor believes that the force used is
 
15                necessary for the purpose of enforcing the lawful
 
16                rules or procedures of the institution; [and]
 
17           (b)  The nature or degree of force used is not
 
18                forbidden by other provisions of the law governing
 
19                the conduct of correctional institutions; and
 
20           (c)  If deadly force is used, its use is otherwise
 
21                justifiable under this chapter[.];
 
22      (6)  The actor is a person responsible for the safety of a
 
23           vessel or an aircraft or a person acting at the
 

 
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 1           direction of the person responsible for the safety of a
 
 2           vessel or an aircraft, and:
 
 3           (a)  The actor believes that the force used is
 
 4                necessary to prevent interference with the
 
 5                operation of the vessel or aircraft or obstruction
 
 6                of the execution of a lawful order, unless the
 
 7                actor's belief in the lawfulness of the order is
 
 8                erroneous and the actor's error is due to
 
 9                ignorance or mistake as to the law defining
 
10                authority; and
 
11           (b)  If deadly force is used, its use is otherwise
 
12                justifiable under this chapter[.]; and
 
13      (7)  The actor is a person who is authorized or required by
 
14           law to maintain order or decorum in a vehicle, train,
 
15           or other carrier, or in a place where others are
 
16           assembled, and:
 
17           (a)  The actor believes that the force used is
 
18                necessary for that purpose; and
 
19           (b)  The force used is not designed to cause or known
 
20                to create a substantial risk of causing death,
 
21                bodily injury, or extreme mental distress."
 
22      SECTION 4.  Section 706-662, Hawaii Revised Statutes, is
 
23 amended to read as follows:
 

 
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 1      "§706-662  Criteria for extended terms of imprisonment.  A
 
 2 convicted defendant may be subject to an extended term of
 
 3 imprisonment under section 706-661, if the convicted defendant
 
 4 satisfies one or more of the following criteria:
 
 5      (1)  The defendant is a persistent offender whose
 
 6           imprisonment for an extended term is necessary for
 
 7           protection of the public.  The court shall not make
 
 8           this finding unless the defendant has previously been
 
 9           convicted of two felonies committed at different times
 
10           when the defendant was eighteen years of age or
 
11           older[.];
 
12      (2)  The defendant is a professional criminal whose
 
13           imprisonment for an extended term is necessary for
 
14           protection of the public.  The court shall not make
 
15           this finding unless:
 
16           (a)  The circumstances of the crime show that the
 
17                defendant has knowingly engaged in criminal
 
18                activity as a major source of livelihood; or
 
19           (b)  The defendant has substantial income or resources
 
20                not explained to be derived from a source other
 
21                than criminal activity[.];
 
22      (3)  The defendant is a dangerous person whose imprisonment
 
23           for an extended term is necessary for protection of the
 

 
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 1           public.  The court shall not make this finding unless
 
 2           the defendant has been subjected to a psychiatric or
 
 3           psychological evaluation that documents a significant
 
 4           history of dangerousness to others resulting in
 
 5           criminally violent conduct, and this history makes the
 
 6           defendant a serious danger to others.  Nothing in this
 
 7           section precludes the introduction of victim-related
 
 8           data in order to establish dangerousness in accord with
 
 9           the Hawaii rules of evidence[.];
 
10      (4)  The defendant is a multiple offender whose criminal
 
11           actions were so extensive that a sentence of
 
12           imprisonment for an extended term is necessary for
 
13           protection of the public.  The court shall not make
 
14           this finding unless:
 
15           (a)  The defendant is being sentenced for two or more
 
16                felonies or is already under sentence of
 
17                imprisonment for felony; or
 
18           (b)  The maximum terms of imprisonment authorized for
 
19                each of the defendant's crimes, if made to run
 
20                consecutively would equal or exceed in length the
 
21                maximum of the extended term imposed, or would
 
22                equal or exceed forty years if the extended term
 
23                imposed is for a class A felony[.]; or
 

 
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 1      (5)  The defendant is an offender against the elder,
 
 2           handicapped, or minor under the age of eight whose
 
 3           imprisonment for an extended term is necessary for the
 
 4           protection of the public. The court shall not make this
 
 5           finding unless:
 
 6           (a)  The defendant attempts or commits any of the
 
 7                following crimes:  murder, manslaughter, a sexual
 
 8                offense that constitutes a felony under chapter
 
 9                707, robbery, felonious assault, child abuse in
 
10                the first degree, child abuse in the second
 
11                degree, child abuse in the third degree, burglary,
 
12                or kidnapping; [and]
 
13           (b)  The defendant, in the course of committing or
 
14                attempting to commit the crime, inflicts serious
 
15                or substantial bodily injury upon a person who is:
 
16                (i)  Sixty years of age or older;
 
17               (ii)  Blind, a paraplegic, or a quadriplegic; or
 
18              (iii)  Eight years of age or younger; and
 
19           (c)  Such disability is known or reasonably should be
 
20                known to the defendant."
 
21      SECTION 5.  This Act does not affect the rights and duties
 
22 that matured, penalties that were incurred, and proceedings that
 
23 were begun, before its effective date.
 

 
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 1      SECTION 6.  Statutory material to be repealed is bracketed.
 
 2 New statutory material is underscored.
 
 3      SECTION 7.  This Act shall take effect upon its approval.
 
 4 
 
 5                       INTRODUCED BY:  ___________________________