REPORT TITLE:
Child abuse


DESCRIPTION:
Creates a new offense of assault in the fourth degree.  Increases
the age of a minor from 8 to 12 with regard to offense against
children.  Raises penalties for the offense of assault in the 1st
to 3rd degrees. (SD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2374
THE SENATE                              S.B. NO.           S.D. 1
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO THE PENAL CODE.



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

 1      SECTION 1.  The legislature is gravely concerned about the
 
 2 continued high incidence of child abuse in our community and
 
 3 finds that present provisions in the penal code are woefully
 
 4 inadequate to provide appropriate punishment for or deterrence to
 
 5 child abuse.  In recognition of the serious limitations under
 
 6 current law, in 1999, the legislature adopted H.B. 273, C.D. 1,
 
 7 which created three new graduated offenses of child abuse, which
 
 8 were classified as A, B, and C felony offenses based upon the
 
 9 defendant's state of mind and the extent of injury to a victim
 
10 who was twelve years of age or younger.  At that time, the
 
11 legislature heard compelling arguments from the prosecutors
 
12 indicating that jurors were reticent to convict parents who were
 
13 charged with knowingly or intentionally abusing their children
 
14 because the jurors found it difficult to believe that any parent
 
15 would purposefully injure their child.  Thus, H.B. 273, C.D. 1
 
16 was enacted to address the concerns of jurors by allowing that a
 
17 parent's reckless actions that resulted in injuries to a child be
 
18 charged as a serious felony offense.
 
19      Unfortunately, the Governor subsequently vetoed the bill.
 
20 Based upon his veto message, the Governor's primary concern
 

 
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 1 appeared to be that the prohibited conduct covered by the new
 
 2 offenses of child abuse already is prohibited under present
 
 3 assault statutes and that, therefore, the new offenses are
 
 4 unnecessary, as the only purpose is to increase penalties when
 
 5 the victim is twelve or younger.  The Governor also expressed
 
 6 concern that these new child abuse offenses would not be lesser
 
 7 included offenses of attempted murder.
 
 8      While appreciating the Governor's concerns, the legislature 
 
 9 finds that other criminal statutes recognize the need for special
 
10 protection for minors.  For example, section 712-1241, Hawaii
 
11 Revised Statutes (HRS), makes it a class A felony offense for
 
12 distributing to a minor any dangerous drug in any amount.
 
13 Section 712-1244, HRS, makes it a class A felony offense for
 
14 distributing any harmful drug in any amount to a minor.  In
 
15 addition, promoting child abuse in the first degree is also a
 
16 class A felony.  The legislature also notes that the criminal
 
17 statutes confer "special protection" to correctional workers and
 
18 educational workers under section 707-711 (Assault in the Second
 
19 Degree), HRS.
 
20      Furthermore, the legislature notes that there are instances
 
21 under the penal code in which, because of the need to address
 
22 particular concerns, the legislature has seen fit not to provide
 

 
 
 
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 1 for lesser included offenses, including assault in the second
 
 2 degree under sections 707-711(1)(c) (correctional workers) and
 
 3 707-711(1)(e) (educational workers).  The legislature does not
 
 4 view this alone as an overwhelming obstacle, although it would
 
 5 obviously require the prosecutor to exercise care in making
 
 6 charging decisions.
 
 7      Accordingly, the legislature firmly believes that stronger
 
 8 measures are needed to sufficiently safeguard children, who are
 
 9 most at risk of being harmed by the reckless actions of adults.
 
10      SECTION 2.  Chapter 707, Hawaii Revised Statutes, is amended
 
11 by adding a new section to be appropriately designated and to
 
12 read as follows:
 
13      "707-    Assault in the fourth degree.  (1)  A person
 
14 commits the offense of assault in the fourth degree if the
 
15 person:
 
16      (a)  Intentionally, knowingly, or recklessly causes bodily
 
17           injury to another person; or
 
18      (b)  Negligently causes bodily injury to another person with
 
19           a dangerous instrument.
 
20      (2)  Assault in the fourth degree is a misdemeanor unless
 
21 committed in a fight or scuffle entered into by mutual consent,
 
22 in which case it is a petty misdemeanor."
 

 
 
 
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 1      SECTION 3.  Section 706-660.2, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "706-660.2  Sentence of imprisonment for offenses against
 
 4 children, elder persons, or handicapped persons.  Notwithstanding
 
 5 section 706-669, a person who, in the course of committing or
 
 6 attempting to commit a felony, causes the death or inflicts
 
 7 serious or substantial bodily injury upon a person who is:
 
 8      (1)  Sixty years of age or older;
 
 9      (2)  Blind, a paraplegic, or a quadriplegic; or
 
10      (3)  [Eight] Twelve years of age or younger;
 
11 and such disability is known or reasonably should be known to the
 
12 defendant, shall, if not subjected to an extended term of
 
13 imprisonment pursuant to section 706-662, be sentenced to a
 
14 mandatory minimum term of imprisonment without possibility of
 
15 parole as follows:
 
16      (1)  For murder in the second degree--fifteen years;
 
17      (2)  For a class A felony--six years, eight months;
 
18      (3)  For a class B felony--three years, four months;
 
19      (4)  For a class C felony--one year, eight months."
 
20      SECTION 4.  Section 706-662, Hawaii Revised Statutes, is
 
21 amended to read as follows:
 
22      "706-662  Criteria for extended terms of imprisonment.  A
 
23 convicted defendant may be subject to an extended term of
 
24 imprisonment under section 706-661, if the convicted defendant
 

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

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

 
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 1           for the protection of the public.  The court shall not
 
 2           make this finding unless:
 
 3           (a)  The defendant attempts or commits any of the
 
 4                following crimes:  murder, manslaughter, a sexual
 
 5                offense that constitutes a felony under chapter
 
 6                707, robbery, felonious assault, burglary, or
 
 7                kidnapping; and
 
 8           (b)  The defendant, in the course of committing or
 
 9                attempting to commit the crime, inflicts serious
 
10                or substantial bodily injury upon a person who is:
 
11                 (i) Sixty years of age or older;
 
12                (ii) Blind, a paraplegic, or a quadriplegic; or
 
13               (iii) [Eight] Twelve years of age or younger; and
 
14           (c)  Such disability is known or reasonably should be
 
15                known to the defendant."
 
16      SECTION 5.  Section 707-710, Hawaii Revised Statutes, is
 
17 amended by amending subsection (2) to read as follows:
 
18      "(2)  Assault in the first degree is a class [B] A felony."
 
19      SECTION 6.  Section 707-111, Hawaii Revised Statutes, is
 
20 amended by amending subsection (2) to read as follows:
 
21      "(2)  Assault in the second degree is a class [C] B felony."
 
22      SECTION 7.  Section 707-712, Hawaii Revised Statutes, is
 
23 amended to read as follows:
 

 
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 1      "707-712  Assault in the third degree.(1)  A person
 
 2 commits the offense of assault in the third degree if the
 
 3 person[:
 
 4      (a)  Intentionally, knowingly, or recklessly causes bodily
 
 5           injury to another person; or
 
 6      (b)  Negligently causes bodily injury to another person with
 
 7           a dangerous instrument.
 
 8      (2)  Assault in the third degree is a misdemeanor unless
 
 9 committed in a fight or scuffle entered into by mutual consent,
 
10 in which case it is a petty misdemeanor.] recklessly causes
 
11 substantial bodily injury to another person.
 
12      (2)  Assault in the third degree is a class C felony."
 
13      SECTION 8.  This Act does not affect rights and duties that
 
14 matured, penalties that were incurred, and proceedings that were
 
15 begun, before its effective date.
 
16      SECTION 9.  Statutory material to be repealed is bracketed.
 
17 New statutory material is underscored.
 
18      SECTION 10.  This Act shall take effect upon its approval.