PART V.  SEXUAL OFFENSES

Law Journals and Reviews

  Rape and Child Sexual Assault:  Dispelling the Myths.  14 UH L. Rev. 157 (1992).

     §§707-730 to 707-738  [OLD] REPEALED.  L 1986, c 314, §56.

     §707-730  Sexual assault in the first degree.  (1)  A person commits the offense of sexual assault in the first degree if:

     (a)  The person knowingly subjects another person to an act of sexual penetration by strong compulsion;

     (b)  The person knowingly engages in sexual penetration with another person who is less than fourteen years old;

     (c)  The person knowingly engages in sexual penetration with a person who is at least fourteen years old but less than sixteen years old; provided that:

         (i)  The person is not less than five years older than the minor; and

        (ii)  The person is not legally married to the minor;

     (d)  The person knowingly subjects to sexual penetration another person who is mentally defective; or

     (e)  The person knowingly subjects to sexual penetration another person who is mentally incapacitated or physically helpless as a result of the influence of a substance that the actor knowingly caused to be administered to the other person without the other person's consent.

Paragraphs (b) and (c) shall not be construed to prohibit practitioners licensed under chapter 453 or 455 from performing any act within their respective practices.

     (2)  Sexual assault in the first degree is a class A felony. [L 1986, c 314, pt of §57; am L 1987, c 181, §9; am L Sp 2001 2d, c 1, §§1, 7; am L 2002, c 36, §3; am L 2003, c 62, §1; am L 2004, c 10, §15; am L 2006, c 230, §32; am L 2009, c 11, §72]

Cross References

  Testing of charged or convicted person for human immunodeficiency virus status, see §325-16.5.

Case Notes

  Defendant's right to a fair trial was violated where counselor of victim-witness was allowed to place hands upon victim's shoulders while victim was testifying.  70 H. 472, 777 P.2d 240 (1989).

  Trial court did not commit plain error when it gave a single instruction encompassing two counts of sexual assault in first degree; a consent instruction may be given separately and need not be included as an element of sexual assault.  75 H. 152, 857 P.2d 579 (1993).

  Sexual assault in the first degree, in violation of subsection (1)(b), is not, and cannot be, a "continuing offense"; each distinct act in violation of this statute constitutes a separate offense under the Hawaii Penal Code.  84 H. 1, 928 P.2d 843 (1996).

  As a precondition to convicting a person of first degree sexual assault, in violation of subsection (1)(b), the prosecution must prove beyond a reasonable doubt that the person committed an act of "any penetration, however slight", as mandated by the plain language of the definition of "sexual penetration" contained in §707-700.  102 H. 391, 76 P.3d 943 (2003).

  A specific unanimity (jury) instruction is not required where (1) the offense is not defined in such a manner as to preclude it from being proved as a continuous offense and (2) the prosecution alleges, adduces evidence of, and argues that the defendant's action constituted a continuous course of conduct; thus, a specific unanimity instruction was not required where prosecution alleged a continuous course of conduct with respect to defendant's kidnapping charge under §707-720, but was required for defendant's attempted first degree sexual assault charge under this section.  121 H. 339, 219 P.3d 1126 (2009).

  Circuit court did not err in instructing the jury on the lesser included offense of sexual assault in the third degree where, although testimony indicated that there were incidents of sexual penetration between complainant and defendant, which would support a conviction for sexual assault in the first degree, a rational juror could have inferred that there was "sexual contact" prior to the penetration, i.e., that there was "touching" of "the sexual or other intimate parts" of complainant, such as complainant's genitalia, buttocks, or other intimate parts, or that complainant touched defendant's "sexual or other intimate parts".  124 H. 90, 237 P.3d 1156 (2010).

  There was overwhelming evidence tending to show defendant guilty beyond a reasonable doubt of two counts of sexual assault in the first degree, where defendant subjected victim to acts of sexual penetration by inserting defendant's penis into victim's mouth and genital openings, respectively, by strong compulsion, and did so knowingly as to each element of the offense.  126 H. 267, 270 P.3d 997 (2011).

  Where victim testified that defendant sexually assaulted victim in each of the four ways alleged, which was supported by testimony of victim's brother and uncle, evidence was sufficient to prove that defendant intentionally engaged in conduct under the circumstances that defendant believed them to be, the conduct constituted a substantial step in the course of conduct, and defendant intended that the course of conduct culminate in sexual penetration with victim, thus supporting defendant's convictions.  126 H. 383, 271 P.3d 1142 (2012).

  Trial court must instruct jury as to what specific facts jury must find before it decides whether defendant is guilty of attempted sexual assault in first degree.  77 H. 177 (App.), 880 P.2d 1224 (1994).

  Placement of the elemental attendant circumstances after the state of mind in the enumerated elements instruction was not error; when read and considered as a whole, the instructions adequately informed the jury of the prosecution's burden to prove that complainant did not consent to the acts alleged and was not married to defendant at the time, and that defendant was aware of both circumstances when defendant acted.  97 H. 140 (App.), 34 P.3d 1039 (2000).

  Where there was no evidence, independent of defendant's extrajudicial confession, of the corpus delicti of attempted sexual assault of victim by defendant, defendant's conviction reversed.  103 H. 490 (App.), 83 P.3d 753 (2003).

  Although criminal sanctions are clearly directed only at adult conduct under subsection (1)(b) and §707-732(1)(b), there is no legislative history that supports a conclusion that only adults were intended to be prohibited from the proscribed sexual conduct; when the legislature amended subsection (1) and §707-732(1) in 2001, and could have, but did not include language allowing consensual sexual conduct between, for example, two thirteen year olds, the legislative intent was to maintain the existing prohibitions against such conduct.  121 H. 92 (App.), 214 P.3d 1082 (2009).

  Section 707-732(1)(b) and subsection (1)(b), as applied to private consensual acts between two persons, including minors, did not violate minor's right to privacy as the State has at least a significant interest in regulating the sexual activities of children under the age of fourteen; in addition, there is no fundamental personal privacy right for minors under the age of fourteen to engage in sexual activities with other children under the age of fourteen; this applies to young boys, as well as to young girls, and is not strictly dependent on an age differential between the children.  121 H. 92 (App.), 214 P.3d 1082 (2009).

  State's exercise of prosecutorial discretion in the case was not constitutionally infirm where defendant failed to meet the burden of demonstrating that defendant was prosecuted based on an arbitrary classification; defendant was prosecuted under §707-732 and this section based on allegations that defendant was significantly older than child #1, had initiated the prohibited sexual activities with child #1 and child #2, and had engaged in multiple instances of prohibited sexual contact with more than one child.  121 H. 92 (App.), 214 P.3d 1082 (2009).

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