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§§707-730 to 707-738 [OLD] REPEALED.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 the person:
(a) Knowingly subjects another person to an act of sexual penetration by strong compulsion;
(b) Knowingly engages in sexual penetration with a person who is less than fourteen years old;
(c) Knowingly engages in sexual penetration with a person who is at least fourteen years old but less than sixteen years old; provided that the actor is:
(i) No less than five years older than the minor; and
(ii) Not legally married to the minor;
(d) Knowingly subjects to sexual penetration a person who is mentally defective; provided that the actor is negligent in not knowing of the mental defect of the victim; or
(e) Knowingly subjects to sexual penetration a 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; am L 2021, c 239, §2]
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).
707-730 Sexual assault in the first degree
(1) A person commits the offense of sexual assault in the first degree if the person:
(a) Knowingly subjects another person to an act of sexual penetration by strong compulsion;
(b) Knowingly engages in sexual penetration with a person who is less than fourteen years old;
(c) Knowingly engages in sexual penetration with a person who is at least fourteen years old but less than sixteen years old; provided that the actor is:
(i) No less than five years older than the minor; and
(ii) Not legally married to the minor;
(d) Knowingly subjects to sexual penetration a person who is mentally defective; provided that the actor is negligent in not knowing of the mental defect of the victim; or
(e) Knowingly subjects to sexual penetration a 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.
In the state of Hawaii, most sex crimes will fall under the scope of first, second, third or fourth degree sexual assault. While there were previously separate charges for offenses like rape and statutory rape, most of these crimes now fall under the umbrella of “sexual assault.” The severity of these charges will depend on a number of different factors, however, including the victim’s age and the manner in which the sexual assault was committed.
Unlike most other states in the U.S., which have set the legal age of consent at 18, a minor who is at least 16 years old can consent to having sexual intercourse with an adult in Hawaii. Up until 2001, the age of consent was actually 14. If the minor is at least 14 years, however, they can still agree to engage in sexual acts with someone who is no more than five years their senior. This of course does not apply to cases of non-consensual sex.
Sexual Assault in the First Degree – Class A Felony
You could face penalties for a Class A felony if you are charged with sexual assault in the first degree. According to HRS § 707-730, you would be guilty of this offense if you have sexually penetrated another person under the following circumstances:
- Through the use of “strong compulsion” or force
- With a minor who is 14 years old or younger
- With a minor who is between 14 and 16 years old
- You are at least five years older
- With another person who is mentally handicapped
- With a person to whom you administered drugs
If you are convicted, you could face up to 20 years in state prison and $50,000 in fines.
Sexual Assault in the Second Degree – Class B Felony
You could face penalties for a Class B felony if you are charged with sexual assault in the second degree. According to HRS § 707-731, you would be guilty of this offense if you have sexually penetrated another person under the following circumstances:
- Through the use of compulsion or force
- With a person who is incapacitated or physically helpless
- With an inmate as a correctional facility employee
If you are convicted, you could face up to 10 years in state prison and $25,000 in fines.
Sexual Assault in the Third Degree – Class C Felony
You would be prosecuted for a Class C felony if you are charged with sexual assault in the third degree. According to HRS § 707-732, you would be guilty of this sex crime if you have engaged in illicit sexual contact with another person under the following circumstances:
- Penetration is achieved through compulsion or force
- Sexual contact is made with a minor under the age of 14
- Sexual contact is made with a minor who is 14 – 16 years old
- You are at least five years older
- Sexual contact is made with a mentally handicapped person
- A correctional facility worker makes sexual contact with an inmate
If you are convicted, you could face up to five years in prison and $10,000 in fines.
Sexual Assault in the Fourth Degree – Misdemeanor
You would be charged with a misdemeanor offense if you have been accused of committing sexual assault in the fourth degree. According to HRS § 707-733, you could be found guilty of this crime if you engage in any of the following acts for your own sexual gratification:
- Sexual contact with another person through compulsion
- Exposing your genitals to another person in an alarming manner
- Trespassing for the purpose of “peeping” on another person
If you are convicted, you could face up to one year in jail and $2,000 in fines.
The Law Office of Victor Bakke, ALC Is Here to Help
Have you been charged with sexual assault in Hawaii? If so, you should waste no time in contacting the Honolulu criminal attorney at The Law Office of Victor Bakke, ALC. With more than two decades of experience and a track record that includes 3,000+ case victories, Victor Bakke is the one that you will want on your side in the face of serious sex crime allegations. Getting started is as easy as filling out a case evaluation form online.
Don’t wait to act when your future is on the line! Contact us now.
