SB3180

SECTION 1. Chapter 712, Hawaii Revised Statutes, is amended by adding a new section to part II to be appropriately designated and to read as follows:

"§712-A Possession or control of matter produced using and depicting a minor engaged in sexual conduct. (1) A person commits the offense of possession or control of matter produced using and depicting a minor engaged in sexual conduct if:

(a) The person knowingly possesses or controls any matter, representation of information, data, or image, including but not limited to any film, filmstrip, photograph, negative, slide, photocopy, laser or ink-jet print, videotape, video laser disc, compact disc, digital video disc, digital versatile disc, computer floppy disc or other computer read storage media, data storage media, computer hardware, computer software, or computer-generated image that contains or incorporates in any manner any moving or still image that depicts or was produced using a minor; and

(b) The person knows that the matter depicts a minor personally engaging in or simulating sexual conduct as defined in section 712-1210.

(2) It shall not be necessary to prove that the matter is pornographic as defined in section 712-1210.

(3) This section shall not apply to drawings, figurines, statues, or any film rated by the Motion Picture Association of America.

(4) Possession or control of matter produced using and depicting a minor engaged in sexual conduct is a class C felony."

SECTION 2. Chapter 846E, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§846E-A Covered offenders; prohibitions. Notwithstanding any other provision of law to the contrary, a covered offender shall not:

(1) During the period of any parole, reside in any single-family dwelling with any other covered offender unless those persons are related by blood, marriage, or adoption. For purposes of this paragraph, "single-family dwelling" shall not include a residential facility that serves six or fewer persons; or

(2) Reside within two thousand feet of any school or public park. For purposes of this paragraph, "school" means any public or private preschool, kindergarten, elementary, intermediate, middle secondary, or high school."

SECTION 3. Section 704-406, Hawaii Revised Statutes, is amended to read as follows:

"§704-406 Effect of finding of unfitness to proceed. (1) If the court determines that the defendant lacks fitness to proceed, the proceeding against the defendant shall be suspended, except as provided in section 704-407, and the court shall commit the defendant to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment. If the court is satisfied that the defendant may be released on condition without danger to the defendant or to the person or property of others, the court shall order the defendant's release, which shall continue at the discretion of the court on conditions the court determines necessary. A copy of the report filed pursuant to section 704‑404 shall be attached to the order of commitment or order of release on conditions.

(2) When the court, on its own motion or upon the application of the director of health, the prosecuting attorney, or the defendant, determines, after a hearing if a hearing is requested, that the defendant has regained fitness to proceed, the penal proceeding shall be resumed. If, however, the court is of the view that so much time has elapsed since the commitment or release on conditions of the defendant that it would be unjust to resume the proceeding, the court may dismiss the charge and:

(a) Order the defendant to be discharged;

(b) Subject to the law governing the involuntary civil commitment of persons affected by physical or mental disease, disorder, or defect, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment; or

(c) Subject to the law governing involuntary outpatient treatment, order the defendant to be released on conditions the court determines necessary.

(3) Within a reasonable time following any commitment under subsection (1), the director of health shall report to the court on whether the defendant presents a substantial likelihood of becoming fit to proceed in the future. The court, in addition, may appoint a panel of three qualified examiners in felony cases or one qualified examiner in nonfelony cases to make a report. If, following a report, the court determines that the defendant probably will remain unfit to proceed, the court may dismiss the charge and:

(a) Release the defendant; or

(b) Subject to the law governing involuntary civil commitment, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment.

(4) Within a reasonable time following any release under subsection (1), the court shall appoint a panel of three qualified examiners in felony cases or one qualified examiner in nonfelony cases to report to the court on whether the defendant presents a substantial likelihood of becoming fit to proceed in the future. If, following the report, the court determines that the defendant probably will remain unfit to proceed, the court may dismiss the charge and:

(a) Release the defendant; or

(5) Whenever a person who is a sexually violent predator, as defined by section 846E-1, is released on condition pursuant to this section, the person shall be subject to electronic monitoring of the person's whereabouts by means of a global positioning system tracking device, or other similar device, at all times while the person is released on conditions."

SECTION 4. Section 704-407, Hawaii Revised Statutes, is amended to read as follows:

"§704-407 Special hearing following commitment or release on conditions. (1) At any time after commitment as provided in section 704‑406, the defendant or the defendant's counsel or the director of health may apply for a special post-commitment or post-release hearing. If the application is made by or on behalf of a defendant not represented by counsel, the defendant shall be afforded a reasonable opportunity to obtain counsel, and if the defendant lacks funds to do so, counsel shall be assigned by the court. The application shall be granted only if the counsel for the defendant satisfies the court by affidavit or otherwise that, as an attorney, the counsel has reasonable grounds for a good faith belief that the counsel's client has an objection based upon legal grounds to the charge.

(2) If the motion for a special post-commitment or post‑release hearing is granted, the hearing shall be by the court without a jury. No evidence shall be offered at the hearing by either party on the issue of physical or mental disease, disorder, or defect as a defense to, or in mitigation of, the offense charged.

(3) After the hearing, the court shall rule on any legal objection raised by the application and, in an appropriate case, may quash the indictment or other charge, find it to be defective or insufficient, or otherwise terminate the proceedings on the law. In any such case, unless all defects in the proceedings are promptly cured, the court shall terminate the commitment or release ordered under section 704-406 and:

(a) Order the defendant to be discharged;

(b) Subject to the law governing involuntary civil commitment of persons affected by a physical or mental disease, disorder, or defect, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment; or

(c) Subject to the law governing involuntary outpatient treatment, order the defendant to be released on such conditions as the court deems necessary.

(4) Whenever a person who is a sexually violent predator, as defined by section 846E-1, is released on condition pursuant to this section, the person shall be subject to electronic monitoring of the person's whereabouts by means of a global positioning system tracking device, or other similar device, at all times while the person is released on conditions."

SECTION 5. Section 704-411, Hawaii Revised Statutes, is amended to read as follows:

"§704-411 Legal effect of acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility; commitment; conditional release; discharge; procedure for separate post-acquittal hearing. (1) When a defendant is acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility, the court, on the basis of the report made pursuant to section 704-404, if uncontested, or the medical or psychological evidence given at the trial or at a separate hearing, shall make an order as follows:

(a) The court shall order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for custody, care, and treatment if the court finds that the defendant:

(i) Is affected by a physical or mental disease, disorder, or defect;

(ii) Presents a risk of danger to self or others; and

(iii) Is not a proper subject for conditional release;

provided that the director of health shall place defendants charged with misdemeanors or felonies not involving violence or attempted violence in the least restrictive environment appropriate in light of the defendant's treatment needs and the need to prevent harm to the person confined and others;

(b) The court shall order the defendant to be released on such conditions as the court deems necessary if the court finds that the defendant is affected by physical or mental disease, disorder, or defect and that the defendant presents a danger to self or others, but that the defendant can be controlled adequately and given proper care, supervision, and treatment if the defendant is released on condition; or

(c) The court shall order the defendant discharged if the court finds that the defendant is no longer affected by physical or mental disease, disorder, or defect or, if so affected, that the defendant no longer presents a danger to self or others and is not in need of care, supervision, or treatment.

(2) The court, upon its own motion or on the motion of the prosecuting attorney or the defendant, shall order a separate post-acquittal hearing for the purpose of taking evidence on the issue of physical or mental disease, disorder, or defect and the risk of danger that the defendant presents to self or others.

(3) When ordering a hearing pursuant to subsection (2):

(a) In nonfelony cases, the court shall appoint a qualified examiner to examine and report upon the physical and mental condition of the defendant. The court may appoint either a psychiatrist or a licensed psychologist. The examiner may be designated by the director of health from within the department of health. The examiner shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners; and

(b) In felony cases, the court shall appoint three qualified examiners to examine and report upon the physical and mental condition of the defendant. In each case, the court shall appoint at least one psychiatrist and at least one licensed psychologist. The third member may be a psychiatrist, a licensed psychologist, or a qualified physician. One of the three shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. The three examiners shall be appointed from a list of certified examiners as determined by the department of health.

To facilitate the examination and the proceedings thereon, the court may cause the defendant, if not then confined, to be committed to a hospital or other suitable facility for the purpose of examination for a period not exceeding thirty days or such longer period as the court determines to be necessary for the purpose upon written findings for good cause shown. The court may direct that qualified physicians or psychologists retained by the defendant be permitted to witness the examination. The examination and report and the compensation of persons making or assisting in the examination shall be in accord with section 704-404(3), (4)(a) and (b), (6), (7), (8), and (9). As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3).

(4) Whether the court's order under subsection (1) is made on the basis of the medical or psychological evidence given at the trial, or on the basis of the report made pursuant to section 704-404, or the medical or psychological evidence given at a separate hearing, the burden shall be upon the State to prove, by a preponderance of the evidence, that the defendant is affected by a physical or mental disease, disorder, or defect and may not safely be discharged and that the defendant should be either committed or conditionally released as provided in subsection (1).

(5) In any proceeding governed by this section, the defendant's fitness shall not be an issue.

(6) Whenever a person who is a sexually violent predator, as defined by section 846E-1, is released on condition pursuant to this section, the person shall be subject to electronic monitoring of the person's whereabouts by means of a global positioning system tracking device, or other similar device, at all times while the person is released on conditions."

SECTION 6. Section 704-412, Hawaii Revised Statutes, is amended to read as follows:

"§704-412 Committed person; application for conditional release or discharge; by the director of health; by the person. (1) After the expiration of at least ninety days following the order of commitment pursuant to section 704-411, if the director of health is of the opinion that the person committed to the director's custody is still affected by a physical or mental disease, disorder, or defect and may be released on condition or discharged without danger to self or to the person or property of others or that the person is no longer affected by a physical or mental disease, disorder, or defect, the director shall make application for the discharge or conditional release of the person in a report to the court from which the person was committed and shall transmit a copy of the application and report to the prosecuting attorney of the county from which the person was committed. The person shall be given notice of such application.

(2) After the expiration of ninety days from the date of the order of commitment pursuant to section 704-411, the person committed may apply to the court from which the person was committed for an order of discharge upon the ground that the person is no longer affected by a physical or mental disease, disorder, or defect. The person committed may apply for discharge or conditional release upon the ground that, though still affected by a physical or mental disease, disorder, or defect, the person may be released without danger to self or to the person or property of others. A copy of the application shall be transmitted to the prosecuting attorney of the county from which the defendant was committed. If the determination of the court is adverse to the application, the person shall not be permitted to file a further application until one year has elapsed from the date of any preceding hearing on an application for the person's discharge or conditional release.

(3) Whenever a person who is a sexually violent predator, as defined by section 846E-1, is released on condition pursuant to this section, the person shall be subject to electronic monitoring of the person's whereabouts by means of a global positioning system tracking device, or other similar device, at all times while the person is released on conditions."

SECTION 7. Section 704-413, Hawaii Revised Statutes, is amended to read as follows:

"§704-413 Conditional release; application for modification or discharge; termination of conditional release and commitment. (1) Any person released pursuant to section 704-411 shall continue to receive mental health or other treatment and care deemed appropriate by the director of health until discharged from conditional release. The person shall follow all prescribed treatments and take all prescribed medications according to the instructions of the person's treating mental health professional. If any mental health professional treating any conditionally released person believes either the person is not complying with the requirements of this section or there is other evidence that hospitalization is appropriate, the mental health professional shall report the matter to the probation officer of the conditionally released person. The probation officer may order the conditionally released person to be hospitalized for a period not to exceed seventy-two hours if the probation officer has probable cause to believe the person has violated the requirements of this subsection. No person shall be hospitalized beyond the seventy-two hour period, as computed pursuant to section 1-29, unless a hearing has been held pursuant to subsection (3).

(2) Any person released pursuant to section 704-411 may apply to the court ordering the conditional release for discharge from, or modification of, the order granting conditional release on the ground that the person is no longer affected by a physical or mental disease, disorder, or defect and may be discharged, or the order may be modified, without danger to the person or to others. The application shall be accompanied by a letter from or supporting affidavit of a qualified physician or licensed psychologist. A copy of the application and letter or affidavit shall be transmitted to the prosecuting attorney of the circuit from which the order issued and to any persons supervising the release, and the hearing on the application shall be held following notice to such persons. If the determination of the court is adverse to the application, the person shall not be permitted to file further application until one year has elapsed from the date of any preceding hearing on an application for modification of conditions of release or for discharge.

(3) If, at any time after the order pursuant to section 704-411 granting conditional release, the court determines, after hearing evidence, that:

(a) The person is still affected by a physical or mental disease, disorder, or defect, and the conditions of release have not been fulfilled; or

(b) For the safety of the person or others, the person's conditional release should be revoked,

the court may forthwith modify the conditions of release or order the person to be committed to the custody of the director of health, subject to discharge or release only in accordance with the procedure prescribed in section 704-412.

SECTION 8. Section 704-415, Hawaii Revised Statutes, is amended to read as follows:

"§704-415 Disposition of application for discharge, conditional release, or modification of conditions of release. (1) If the court is satisfied from the report filed pursuant to section 704-414, and such testimony of the reporting examiners as the court deems necessary, that:

(a) The person is affected by a physical or mental disease, disorder, or defect and the discharge, conditional release, or modification of conditions of release applied for may be granted without danger to the committed or conditionally released person or to the person or property of others; or

(b) The person is no longer affected by a physical or mental disease, disorder, or defect,

the court shall grant the application and order the relief. If the court is not so satisfied, it shall promptly order a hearing.

(2) Any such hearing shall be deemed a civil proceeding and the burden shall be upon the applicant to prove that the person is no longer affected by a physical or mental disease, disorder, or defect or may safely be either released on the conditions applied for or discharged. According to the determination of the court upon the hearing, the person shall be:

(a) Discharged;

(b) Released on such conditions as the court determines to be necessary; or

(c) Recommitted to the custody of the director of health, subject to discharge or release only in accordance with the procedure prescribed in section 704-412.

SECTION 9. Section 704-416.5, Hawaii Revised Statutes, is amended to read as follows:

"§704-416.5 Supervision of person on conditional release. (1) Any person hospitalized under this chapter who is subsequently placed on conditional release shall be subject to the supervision of a probation officer until such time as that supervision is terminated by order of the court.

(2) The probation officer shall report, as the court may order, whether the conditionally released person is complying with the conditions of the release.

SECTION 10. Section 707-730, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

"(2) Sexual assault in the first degree is a class A felony[.]; provided that, notwithstanding section 706-659, the defendant shall be sentenced to a mandatory term of twenty-five years imprisonment without possibility of parole if the person with whom the defendant engaged in sexual penetration was less than eleven years of age."

SECTION 11. Section 707-756, Hawaii Revised Statutes, is amended to read as follows:

"§707-756 Electronic enticement of a child in the first degree. (1) Any person who, using a computer or any other electronic device:

(a) Intentionally or knowingly communicates:

(i) With a minor known by the person to be under the age of eighteen years;

(ii) With another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or

(iii) With another person who represents that person to be under the age of eighteen years; and

(b) With the intent to promote or facilitate the commission of a felony:

(i) That is a murder in the first or second degree;

(ii) That is a class A felony; or

(iii) That is an offense defined in section 846E-1;

agrees to meet with the minor, or with another person who represents that person to be a minor under the age of eighteen years; and

is guilty of electronic enticement of a child in the first degree.

(2) For purposes of this section, "communicates" means direct or indirect communication or contact by the person, or by another person on the person's behalf.

[~~(2)~~] (3) Electronic enticement of a child in the first degree is [~~a class B felony.~~] a felony of the same class as the felony the person intended to promote or facilitate. Notwithstanding any law to the contrary, if a person sentenced under this section is sentenced to probation rather than an indeterminate term of imprisonment, the terms and conditions of probation shall include, but not be limited to, a term of imprisonment of one year."

SECTION 12. Section 707-757, Hawaii Revised Statutes, is amended to read as follows:

"§707-757 Electronic enticement of a child in the second degree. (1) Any person who, using a computer or any other electronic device:

(a) Intentionally or knowingly communicates:

(i) With a minor known by the person to be under the age of eighteen years;

(ii) With another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or

(iii) With another person who represents that person to be under the age of eighteen years; and

(b) With the intent to promote or facilitate the commission of a felony, agrees to meet with the minor, or with another person who represents that person to be a minor under the age of eighteen years; and

is guilty of electronic enticement of a child in the second degree.

(2) For purposes of this section, "communicates" means direct or indirect communication or contact by the person, or by another person on the person's behalf.

[~~(2)~~] (3) Electronic enticement of a child in the second degree is [~~a class C felony.~~] a felony one class less than the felony the person intended to promote or facilitate; provided that where the felony the person intended to promote or facilitate is a class C felony, the offense shall also be a class C felony. Notwithstanding any law to the contrary, if a person sentenced under this section is sentenced to probation rather than an indeterminate term of imprisonment, the terms and conditions of probation shall include, but not be limited to, a term of imprisonment of one year."

SECTION 13. Section 846E-2, Hawaii Revised Statutes, is amended to read as follows:

"§846E-2 Registration requirements. (a) A covered offender shall register with the attorney general and comply with the provisions of this chapter for life or for a shorter period of time as provided in this chapter. A covered offender who is not:

(1) An aggravated sex offender;

(2) A repeat covered offender; and

(3) A sexually violent predator,

shall be eligible to petition the court in a civil proceeding for an order that the covered offender's registration requirements under this chapter be terminated, as provided in section 846E-10.

(b) Each provision of this chapter applicable to sex offenders shall also be applicable to offenders against minors, unless offenders against minors are specifically excluded. Whenever a covered offender's public information is made publicly accessible, separate registries shall be maintained for:

(1) Sex offenders; and

(2) Offenders against minors.

(c) Registration information for each covered offender shall consist of a recent photograph, verified fingerprints, and a signed statement by the covered offender containing:

(1) The name, all prior names, and all aliases used by the covered offender or under which the covered offender has been known and other identifying information, including date of birth, social security number, sex, race, height, weight, and hair and eye color;

(2) The actual address and telephone number of the covered offender's residence or mailing address, or any current, temporary address where the covered offender resides, and for each address how long the covered offender has resided there;

(3) The actual address and telephone number where the covered offender is staying for a period of more than ten days, if other than the stated residence;

(4) If known, the future address and telephone number where the covered offender is planning to reside, if other than the stated residence;

(5) Names and, if known, actual business addresses of current and known future employers and the starting and ending dates of any such employment;

(6) Names and actual addresses of current and known future educational institutions with which the covered offender is affiliated in any way, whether or not compensated, including but not limited to affiliation as a faculty member, an employee, or a student, and the starting and ending dates of any such affiliation;

(7) The year, make, model, color, and license number of all vehicles currently owned or operated by the covered offender;

(8) A statement listing all covered offenses for which the covered offender has been convicted or found unfit to proceed or acquitted pursuant to chapter 704;

(9) A statement indicating whether the covered offender has received or is currently receiving treatment ordered by a court of competent jurisdiction or by the Hawaii paroling authority;

(10) A statement indicating whether the covered offender is a United States citizen; and

(11) Any additional identifying information about the covered offender.

(d) Whenever a covered offender provides registration information, during initial registration as a covered offender or when providing notice of a change in registration information, the covered offender also shall sign a statement verifying that all of the registration information is accurate and current.

(e) In addition to the requirement under subsection (a) to register with the attorney general and comply with the provisions of this chapter until a court relieves the covered offender of the registration requirements of this chapter, each covered offender shall also register in person with the chief of police where the covered offender resides or is present. Registration under this subsection is for the purpose of providing the covered offender's photograph, fingerprints, and registration information. Registration under this subsection is required whenever the covered offender, whether or not a resident of this State, remains in this State for more than ten days or for an aggregate period exceeding thirty days in one calendar year. Covered offenders required to register in person with the chief of police under this subsection shall register no later than three working days after the earliest of:

(1) Arrival in this State;

(2) Release from incarceration;

(3) Release from commitment;

(4) Release on furlough;

(5) Conviction for a covered offense, unless incarcerated;

(6) Release on probation;

(7) Placement on parole; or

(8) Arrival in a county in which the covered offender resides or expects to be present for a period exceeding ten days.

In addition to any other requirement to register under this subsection or subsection (a), each covered offender shall report in person every five years to the chief of police where the covered offender resides for purposes of having a new photograph taken.

(f) The attorney general, in consultation with the chief of police where the offender resides, shall require the offender to submit to electronic monitoring of the offender's whereabouts by means of a global positioning system tracking device, or other similar device, at all times while the person is subject to the requirements of this chapter.

[~~(f)~~] (g) The registration provisions of this section shall apply to all covered offenders without regard to:

(1) The date of the covered offender's conviction;

(2) The date of finding, pursuant to chapter 704, of the covered offender's unfitness to proceed; or

(3) The date of the covered offender's acquittal due to mental disease, disorder, or defect, pursuant to chapter 704."

SECTION 14. Section 846E-9, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A person commits the offense of failure to comply with covered offender registration requirements if the person is required to register under this chapter and the person intentionally, knowingly, or recklessly:

(1) Fails to register with the attorney general by providing to the attorney general or the Hawaii criminal justice data center the person's registration information;

(2) Fails to report in person to the chief of police where the covered offender's residence is located, for purposes of having a new photograph taken within five years after the previous photograph was taken;

(3) Fails to register in person with the chief of police having jurisdiction of the area where the covered offender resides or is present within three working days whenever the provisions of section 846E‑2(e) require the person to do so;

(4) Fails to notify the attorney general or the Hawaii criminal justice data center of a change of any of the covered offender's registration information in writing within three working days of the change;

(5) Provides false registration information to the attorney general, the Hawaii criminal justice data center, or a chief of police;

(6) Signs a statement verifying that all of the registration information is accurate and current when any of the registration information is not substantially accurate and current;

(7) Having failed to establish a new residence within the ten days while absent from the person's registered residence for ten or more days:

(A) Fails to notify the attorney general in writing within three working days that the person no longer resides at the person's registered residence; or

(B) Fails to report to a police station in the State by the last day of every month; [or]

(8) Fails to mail or deliver the periodic verification of registration information form to the attorney general within ten days of receipt, as required by section 846E‑5; provided that it shall be an affirmative defense that the periodic verification form mailed to the covered offender was delivered when the covered offender was absent from the registered address and the covered offender had previously notified the Hawaii criminal justice data center that the covered offender would be absent during the period that the periodic verification form was delivered[.]; or

(9) Violates section 846E-A."

SECTION 15. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 16. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 17. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	3180
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII