The following information was taken directly from the Hawaii legislative website at http://www.capitol.hawaii.gov/hrscurrent/Vol14_Ch0701-0853/HRS0707/

§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; or

(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.

Paragraphs (b) and (c) shall not be
construed to prohibit practitioners licensed under chapter 453, 455, or 460,
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]

 

 

§707-732 Sexual assault in the
third degree.
(1) A person
commits the offense of sexual assault in the third degree if:

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

(b) The
person knowingly subjects to sexual contact another person who is less than
fourteen years old or causes such a person to have sexual contact with the
person;

(c) The
person knowingly engages in sexual contact with a person who is at least
fourteen years old but less than sixteen years old or causes the minor to have
sexual contact with the person; 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 contact another person who is mentally
defective, mentally incapacitated, or physically helpless, or causes such a
person to have sexual contact with the actor;

(e) The
person, while employed:

(i) In a
state correctional facility;

(ii) By a
private company providing services at a correctional facility;

(iii) By a
private company providing community-based residential services to persons
committed to the director of public safety and having received notice of this statute;

(iv) By a
private correctional facility operating in the State of Hawaii; or

(v) As a
law enforcement officer as defined in section 710-1000(13),

knowingly
subjects to sexual contact an imprisoned person, a person confined to a
detention facility, a person committed to the director of public safety, a
person residing in a private correctional facility operating in the State of
Hawaii, or a person in custody, or causes the person to have sexual contact
with the actor; or

(f) The
person knowingly, by strong compulsion, has sexual contact with another person
or causes another person to have sexual contact with the actor.

Paragraphs (b), (c), (d), and (e)
shall not be construed to prohibit practitioners licensed under chapter 453,
455, or 460, from performing any act within their respective practices;
provided further that paragraph (e)(v) shall not be construed to prohibit a law
enforcement officer from performing a lawful search pursuant to a warrant or an
exception to the warrant clause.

(2) Sexual assault in the third
degree is a class C felony. [L 1986, c 314, pt of §57; am L 1987, c 181, §11;
am L Sp 2001 2d, c 1, §§2, 7; am L 2002, c 36, §§2, 3; am L 2003, c 62, §1; am
L 2004, c 10, §15 and c 61, §5]

[§707-733.5] Continuous sexual
assault of a minor under the age of fourteen years.

[Section repealed and replaced with a new
section on ratification of amendment to Article I of the St. Const. L 2004, c
60.]
(1) Any person who:

(a) Either
resides in the same home with a minor under the age of fourteen years or has
recurring access to the minor; and

(b)
Engages in three or more acts of sexual penetration or sexual contact with the
minor over a period of time, but while the minor is under the age of fourteen
years,

is guilty of the offense of
continuous sexual assault of a minor under the age of fourteen years.

(2) To convict under this section,
the trier of fact, if a jury, need unanimously agree only that the requisite
number of acts have occurred; the jury need not agree on which acts constitute
the requisite number.

(3) No other felony sex offense
involving the same victim may be charged in the same proceeding with a charge
under this section, unless the other charged offense occurred outside the time
frame of the offense charged under this section or the other offense is charged
in the alternative. A defendant may be charged with only one count under this
section unless more than one victim is involved, in which case a separate count
may be charged for each victim.

(4) Continuous sexual assault of a
minor under the age of fourteen years is a class A felony. [L 1997, c 379, §2]

 

 

§707-750 Promoting child abuse in
the first degree.
(1) A
person commits the offense of promoting child abuse in the first degree if,
knowing or having reason to know its character and content, the person:

(a)
Produces or participates in the preparation of child pornography;

(b)
Produces or participates in the preparation of pornographic material that
employs, uses, or otherwise contains a minor engaging in or assisting others to
engage in sexual conduct; or

(c)
Engages in a pornographic performance that employs, uses, or otherwise contains
a minor engaging in or assisting others to engage in sexual conduct.

(2) As used in this section:

"Child pornography" means
any pornographic visual representation, including any photograph, film, video,
picture, or computer or computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means, of sexual conduct, if:

(a) The
pornographic production of such visual representation involves the use of a
minor engaging in sexual conduct; or

(b) The
pornographic visual representation has been created, adapted, or modified to
appear that an identifiable minor is engaging in sexual conduct.

"Community standards"
means the standards of the State.

"Computer" shall have the
same meaning as in section 708-890.

"Lascivious" means tending
to incite lust, to deprave the morals in respect to sexual relations, or to produce
voluptuous or lewd emotions in the average person, applying contemporary
community standards.

"Material" means any
printed matter, visual representation, or sound recording and includes, but is
not limited to, books, magazines, motion picture films, pamphlets, newspapers,
pictures, photographs, and tape or wire recordings.

"Minor" means any person
less than eighteen years old.

"Performance" means any
play, motion picture film, dance, or other exhibition performed before any
audience.

"Pornographic" shall have
the same meaning as in section 712-1210.

"Produces" means to
produce, direct, manufacture, issue, publish, or advertise.

"Sadomasochistic abuse"
means flagellation or torture by or upon a person as an act of sexual
stimulation or gratification.

"Sexual conduct" means
acts of masturbation, homosexuality, lesbianism, bestiality, sexual
penetration, deviate sexual intercourse, sadomasochistic abuse, or lascivious
exhibition of the genital or pubic area of a minor.

"Visual representation"
refers to, but is not limited to, undeveloped film and videotape and data
stored on computer disk or by electronic means that are capable of conversion
into a visual image.

(3) The fact that a person engaged
in the conduct specified by this section is prima facie evidence that the
person engaged in that conduct with knowledge of the character and content of
the material or the performance produced, directed, or participated in. The
fact that the person who was employed, used, or otherwise contained in the
pornographic material or performance, was at that time, a minor, is prima facie
evidence that the defendant knew the person to be a minor.

(4) Promoting child abuse in the
first degree is a class A felony. [L 1978, c 214, §1; am L 1982, c 218, §1; am
L 1986, c 314, §58; am L 1988, c 91, §1; am L 1997, c 363, §1; am L 2002, c
200, §2]

 

§707-751 Promoting child abuse in
the second degree.
(1) A
person commits the offense of promoting child abuse in the second degree if,
knowing or having reason to know its character and content, the person:

(a)
Disseminates child pornography;

(b)
Reproduces child pornography with intent to disseminate;

(c)
Disseminates any book, magazine, periodical, film, videotape, computer disk, or
any other material that contains an image of child pornography; or

(d)
Disseminates any pornographic material which employs, uses, or otherwise
contains a minor engaging in or assisting others to engage in sexual conduct.

(2) As used in this section:

"Child pornography" means
any pornographic visual representation, including any photograph, film, video,
picture, or computer or computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means, of sexual conduct, if:

(a) The
pornographic production of such visual representation involves the use of a
minor engaging in sexual conduct; or

(b) The
pornographic visual representation has been created, adapted, or modified to
appear that an identifiable minor is engaging in sexual conduct.



"Community standards"
means the standards of the State.

"Computer" shall have the
same meaning as in section 708-890.

"Disseminate" means to
publish, sell, distribute, transmit, exhibit, present material, mail, ship, or
transport by any means, including by computer, or to offer or agree to do the
same.

"Lascivious" means tending
to incite lust, to deprave the morals in respect to sexual relations, or to
produce voluptuous or lewd emotions in the average person, applying
contemporary community standards.

"Material" means any
printed matter, visual representation, or sound recording and includes, but is
not limited to, books, magazines, motion picture films, pamphlets, newspapers,
pictures, photographs, and tape or wire recordings.

"Minor" means any person
less than eighteen years old.

"Pornographic" shall have
the same meaning as in section 712-1210.

"Sadomasochistic abuse"
means flagellation or torture by or upon a person as an act of sexual
stimulation or gratification.

"Sexual conduct" means
acts of masturbation, homosexuality, lesbianism, bestiality, sexual
penetration, deviate sexual intercourse, sadomasochistic abuse, or lascivious
exhibition of the genital or pubic area of a minor.

"Visual representation"
refers to, but is not limited to, undeveloped film and videotape, and data
stored on computer disk or by electronic means that are capable of conversion
into a visual image.

(3) The fact that a person engaged
in the conduct specified by this section is prima facie evidence that the
person engaged in that conduct with knowledge of the character and content of
the material. The fact that the person who was employed, used, or otherwise
contained in the pornographic material was at that time, a minor, is prima
facie evidence that the defendant knew the person to be a minor.

(4) Promoting child abuse in the
second degree is a class B felony. [L 1978, c 214, §2; am L 1982, c 218, §2; am
L 1986, c 314, §59; am L 1997, c 363, §2; am L 2002, c 200, §3]

 

[§707-752] Promoting child abuse
in the third degree.
(1) A
person commits the offense of promoting child abuse in the third degree if,
knowing or having reason to know its character and content, the person
possesses:

(a) Child
pornography;

(b) Any
book, magazine, periodical, film, videotape, computer disk, electronically
stored data, or any other material that contains an image of child pornography;
or

(c) Any
pornographic material that employs, uses, or otherwise contains a minor
engaging in or assisting others to engage in sexual conduct.

(2) As used in this section:

"Child pornography" means
any pornographic visual representation, including any photograph, film, video,
picture, or computer or computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means, of sexual conduct, if:

(a) The
pornographic production of the visual representation involves the use of a
minor engaging in sexual conduct; or

(b) The
pornographic visual representation has been created, adapted, or modified to
appear that an identifiable minor is engaging in sexual conduct.

"Community standards"
means the standards of the State.

"Computer" shall have the
same meaning as in section 708-890.

"Lascivious" means tending
to incite lust, to deprave the morals with respect to sexual relations, or to
produce voluptuous or lewd emotions in the average person, applying
contemporary community standards.

"Material" means any
printed matter, visual representation, or sound recording and includes, but is
not limited to, books, magazines, motion picture films, pamphlets, newspapers,
pictures, photographs, and tape or wire recordings.

"Minor" means any person
less than eighteen years old.

"Pornographic" shall have
the same meaning as in section 712-1210.

"Sadomasochistic abuse"
means flagellation or torture by or upon a person as an act of sexual
stimulation or gratification.

"Sexual conduct" means
acts of masturbation, homosexuality, lesbianism, bestiality, sexual
penetration, deviate sexual intercourse, sadomasochistic abuse, or lascivious
exhibition of the genital or pubic area of a minor.

"Visual representation"
includes but is not limited to undeveloped film and videotape and data stored
on computer disk or by electronic means that are capable of conversion into a
visual image.

(3) The fact that a person engaged
in the conduct specified by this section is prima facie evidence that the
person engaged in that conduct with knowledge of the character and content of
the material. The fact that the person who was employed, used, or otherwise
contained in the pornographic material was, at that time, a minor is prima
facie evidence that the defendant knew the person to be a minor.

(4) Promoting child abuse in the
third degree is a class C felony. [L 2002, c 200, pt of §1]

 

[§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

(c)
Intentionally or knowingly travels to the agreed upon meeting place at the
agreed upon meeting time;

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

(2) Electronic enticement of a child
in the first degree is a class B felony. [L 2002, c 200, pt of §1]

 

[§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

(c)
Intentionally or knowingly travels to the agreed upon meeting place at the
agreed upon meeting time;

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

(2) Electronic enticement of a child
in the second degree is a class C felony. [L 2002, c 200, pt of §1]

 

 

 

COMMENTARY
ON §§707-730 TO 734

Act 314, Session Laws 1986,
incorporated all of the sexual offenses into five degrees of sexual assault.
These new crimes comprise a graduated series of offenses from a class A felony
to a petty misdemeanor, providing punishment reflecting the seriousness of the
offense committed. As a result of the changes the "voluntary social companion"
distinction no longer exists between what was first and second degree rape and
sodomy. Conference Committee Report No. 51-86.

Act 379, Session Laws 1997, added
§707-733.5, creating a new class A felony offense known as continuous sexual
assault of a minor under the age of fourteen years, which provides specific
circumstances under which sexual assault of a minor under the age of fourteen
years is deemed a continuing offense. The legislature found that public safety
demanded immediate action against sex offenders who prey on children by taking
advantage of their relationship of trust with respect to the minor. According
to statistics, sexual assault against minors is an offense in which an
overwhelming majority of minor victims knew their perpetrator. The legislature
further found that these types of cases are often difficult to prosecute given
that molesters who reside in the same household with children sexually abuse
their victim over an extended period of time. The child often has difficulty
remembering or identifying the specific dates on which the child was molested
and may even repress the memory of events. Senate Standing Committee Report No.
1594, Conference Committee Report No. 28.

 

Act 1, Second
Special Session Laws 2001, amended §§707-730 and 707-732 to require, for the
offenses of sexual assault in the first degree and sexual assault in the third
degree, that the minor be at least fourteen years old but less than sixteen
years old, and the defendant be at least five years older than the minor and
not married to the minor. The legislature found that, in many cases, minors
lacked the capacity to understand the responsibilities and ramifications of
engaging in a sexual relationship with adults. Current law allowed adults to
enter into consensual sexual relationships with minors as young as fourteen
years old without penalty. The legislature believed that these minors were
unfairly burdened with the presumption of knowing the consequences of engaging
in sexual relations with an adult, and that the Act would protect Hawaii’s
children from harmful sexual relationships with adults. Conference Committee
Report No. 66, Senate Standing Committee Report No. 1394.

 

Act 62, Session Laws
2003, amended §§707-730 and 707-732 by removing the sunset provision of Act 1,
Second Special Session Laws 2001, which raised the age at which a person can
consent to sexual contact from fourteen to sixteen years of age in most cases. Act
62 made permanent the provisions that raised the age of consent to sixteen in
most cases. House Standing Committee Report No. 568.

 

COMMENTARY
ON §§707-756 AND 757

Act 200, Session Laws 2002, added
these sections to create criminal offenses relating to electronic enticement of
a child. The legislature found that Act 200 addressed the problem of utilizing
computer technology in committing crimes against children. Conference Committee
Report No. 36-02.