STAND. COM. REP. NO. 2757

                                   Honolulu, Hawaii
                                                     , 2000

                                   RE:  S.B. No. 2374
                                        S.D. 1




Honorable Norman Mizuguchi
President of the Senate
Twentieth State Legislature
Regular Session of 2000
State of Hawaii

Sir:

     Your Committee on Judiciary, to which was referred S.B. No.
2374 entitled: 

     "A BILL FOR AN ACT RELATING TO THE PENAL CODE,"

begs leave to report as follows:

     The purpose of this bill is to:

     (1)  Amend assault in the first and second degrees to
          increase the applicable penalties;

     (2)  Amend assault in the third degree to incorporate
          recklessly causing substantial bodily injury; 

     (3)  Create a new offense of assault in the fourth degree
          which incorporates the existing elements of assault in
          the third degree; and

     (4)  Amend provisions relating to mandatory minimum terms
          and extended terms for offenses against children by
          raising the applicable age from "eight" to "twelve
          years of age or younger.

     Your Committee is gravely concerned about the continued high
incidence of child abuse in our community and finds that present
provisions in the penal code are woefully inadequate to provide
appropriate punishment for or deterrence to child abuse.  In
recognition of the serious limitations under current law, in
1999, the legislature adopted H.B. 273, C.D. 1, which created

 
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                                   STAND. COM. REP. NO. 2757
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three new graduated offenses of child abuse, which were
classified as A, B, and C felony offenses based upon the
defendant's state of mind and the extent of injury to a victim
who was twelve years of age or younger.  At that time, the
legislature heard compelling arguments from the prosecutors
indicating that jurors were reticent to convict parents who were
charged with intentionally or knowingly abusing their children
because the jurors found it difficult to believe that any parent
would purposefully injure their child.  Thus, H.B. 273, C.D. 1
was enacted to address the concerns of jurors by allowing that a
parent's reckless actions that resulted in injuries to a child be
charged as a serious felony offense. 

     Unfortunately, the Governor subsequently vetoed the bill.
Based upon his veto message, the Governor's primary concern
appeared to be that the prohibited conduct covered by the new
offenses of child abuse already is prohibited under present
assault statutes and that, therefore, the new offenses are
unnecessary, as the only purpose is to increase penalties when
the victim is twelve or younger.  The Governor also expressed
concern that these new child abuse offenses would not be lesser
included offenses of attempted murder.

     While appreciating the Governor's concerns, your Committee
notes that other criminal statutes recognize the need for special
protection for minors.  For example, section 712-1241, Hawaii
Revised Statutes (HRS), makes it a class A felony offense for
distributing to a minor any dangerous drug in any amount.
Section 712-1244, HRS, makes it a class A felony offense for
distributing any harmful drug in any amount to a minor.  In
addition, promoting child abuse in the first degree is also a
class A felony.  Your Committee also notes that the criminal
statutes confer "special protection" to correctional workers and
educational workers under section 707-711 (Assault in the Second
Degree), HRS.

     Furthermore, your Committee notes that there are instances
under the penal code in which, because of the need to address
particular concerns, the legislature has seen fit not to provide
for lesser included offenses, including assault in the second
degree under sections 707-711(1)(c) (correctional workers) and
707-711(1)(e) (educational workers).  Your Committee does not
view this alone as an overwhelming obstacle, although it would
obviously require the prosecutor to exercise care in making
charging decisions.

     Accordingly, your Committee firmly believes that stronger
measures are needed to sufficiently safeguard children, who are
most at risk of being harmed by the reckless actions of adults.

 
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     Testimony in support of this measure was submitted by the
Department of the Prosecuting Attorney of the City and County of
Honolulu and the Honolulu Police Department.  Testimony in
opposition to this measure was submitted by the Office of the
Public Defender.

     Upon further consideration, your Committee has amended this
measure by making technical, non-substantive changes for the
purposes of clarity and style.

     As affirmed by the record of votes of the members of your
Committee on Judiciary that is attached to this report, your
Committee is in accord with the intent and purpose of S.B. No.
2374, as amended herein, and recommends that it pass Second
Reading in the form attached hereto as S.B. No. 2374, S.D. 1, and
be placed on the calendar for Third Reading.

                                   Respectfully submitted on
                                   behalf of the members of the
                                   Committee on Judiciary,



                                   ______________________________
                                   AVERY B. CHUMBLEY, Co-Chair



                                   ______________________________
                                   MATTHEW M. MATSUNAGA, Co-Chair

 
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