*1
STATE BUCH, Defendant-Appellant. L.
Walter
No. 18972.
Supreme Court of Hawai'i.
Oct. *2 Custer, briefs, Honolulu, for
Brian on defendant-appellant. Anderson, briefs, Deputy on the
James M. Honolulu, Prosecuting Attorney, plaintiff- appellee. MOON, C.J., KLEIN,
Before RAMIL, LEVINSON, JJ. NAKAYAMA MOON, Chief Justice. Defendant-appellant ap- L. Bueh Walter conviction, trial, jury a his after peals from degree, third assault in the' for sexual (HRS) Revised Statutes violation Hawaii 707-732(l)(b) (1993).1 alleges Buch as er- (1) refusal to instruct ror the circuit court’s: jury included offense” on “lesser degree; fourth deni- assault sexual he suppress motion statements al of his involuntarily given; deni- were claims mental examination of al of his motion for a complaining For the reasons witness. below, we stated affirm.
I. BACKGROUND witness, trial, complaining who At incident the time thirteen old at afternoon question, testified lifting had finished March he tak- at the YMCA and was weights Central Buch, complaining ing a shower. whom before, had seen entered witness never room and initiated conversation. shower he kids kept much liked saying Bueh how he had complaining witness that and told the they show- had finished nice smile. When complaining witness ering, Bueh took the out him how to check front desk to show talking to the he was equipment. While desk, Buch the front complaining witness complaining on the placing hand kept his years old person than fourteen provides pertinent who is less other 1. HRS to have sexual contact commits the offense such a ‘‘[a] or causes [t]he .... in the third if person.” sexual assault person knowingly with the subjects an- contact sexual YMCA, leading away witness’s back and him from front and Buch was arrested. following day, desk. gave tape-record- Department ed statement to Honolulu Police complaining Buch then took the witness (HPD) Timothy Detective Mimaki upstairs to his room on the third floor so that signed Honolulu Police Station. Buch he could witness his *3 81, indicating HPD form that he had been telephone room, Once in Buch’s number. rights informed his constitutional and opened wallet, Buch his the showed com- presence attorney. waived the of an In his plaining badge, a witness and told the com- statement, tape-recorded Buch did not admit plaining paramedic that witness he was a for to offense. city county. the and Buch told then the complaining witness that he had some cream Buch was indicted on December that help would his acne. He asked the single-count alleged The indictment that: complaining money, gave if witness he had dollars, March, day him five complaining and the On about the 11th offered cigarettes Honolulu, City and County witness beer. the and Hawaii, knowingly L. Walter Buch did began complaining Buch to touch the wit- subject contact, to complaining [the sexual complaining ness under his arms while the witness], years who is less than fourteen sat witness on the bed and asked if it hurt. spouse, by old not placing his his hand Buch then worked complaining down complaining penis, on [the witness’s] there- and, hips taking complain- witness’s after off by committing the offense of Sexual As- shirt, ing pressed witness’s his lower abdo- Degree, sault in Third in violation of complaining men. The witness did not re- 707—732(1)(b) Section of the Hawaii Re- pants off, got member how his but Buch then vised Statutes. holding complaining penis was witness’s testicles, underwear, under his 11, 1994, On October Buch filed motion a if asked it hurt. for mental examination of the complaining back, Buch complain- When turned his witness, arguing that ing put his witness clothes back on. Buch raising defendant is the issue of the effect said, “Oh, yeah, put your clothes.” Buch of the victim’s mental emotional and/or put then cream on complaining witness’s upon credibility condition his ... based on face and told him that it powerful” was “real his claim that the victim is homosexual and and that he should back come twice week that part the victim’s was accusation an for more complaining cream. The witness attempt gain money from the defendant. Buch asked if Buch would like to meet his addition, undergoing the defendant is mother, “Oh, said, and Buch no. Don’t tell psyehosexual evaluation as of his ex- nobody.” point, At complaining that wit- amination for fitness/responsibility. suspected something ness that wrong. was complaining Buch told witness prosecution argued that the victim’s sex- hug him a and then him walked downstairs. ual money, tendencies and desire for even if complaining Buch and the witness were in true, present not compel- did sufficient and approximately Buch’s room for fifteen min- ling reasons for a court-ordered mental ex- utes, p.m. way between 6:15 and 6:30 On the 1,1994, following amination. On December out, they Carey Won, saw programs teen motion, hearing November on the YMCA, for director told Buch who its denying court issued written order supposed guests he not upstairs. was to have Buch’s motion. The court concluded complaining allegation then witness took bus “the complaining witness place. to his work mother’s When asked is a money homosexual or that wanted he late, why was complaining he witness compelling ground told neither [a] [n]or sufficient happened, his mother what had his such examination. The credi- issue of police. bility mother called the Later [an] the same insufficient basis to have the evening, March complaining complaining undergo witness a mental exami- nation; show-up witness identified Buch at a field [credibility] jury is for the to decide.”
3H years On October Buch filed a motion less than fourteen old. The court de- motion, ruling suppress legislative the statement he made to the nied the police day history precursor after his arrest. He asserted of the statutes involuntary charged legis- that his statements were offense demonstrated that the suppressed require should be because: no one lature did not intend to actual knowl- victim, and, therefore, rights edge read Buch his Miranda when he was and, arrested, tape-recorded prosecution required prove before the was not interview, Detective Mimaki Buch told that Buch knew that the witness talk, if he did Mimaki would make sure was less than fourteen old. high that a bail would be set and that Buch Buch the sole defense witness. With paramedic would his lose license. Buch con- 11,1992, of March to the events tended that: showering at testified that he was the YMCA *4 pre-questioning The effect of these state- complaining when the witness came to ments on the defendant were to make the take a shower. Buch that testified (1) trauma, psychological defendant: suffer thing my that the immediate came to mind (2) career, worry regarding paramedic his teenagers was come at how the YMCA situation, be embarrassed the entire don’t have their own shower room because (4) worry making front-page about years all the that I Arabia worked Saudi newspapers past, the local as he had sepa- rooms and bathrooms there’s shower (5) experience symptoms exacerbated rately boys for the men and the as well as hypertension stress and for which he was girls. wom[e]n for the and for the And already collecting comp[ensation] worker’s maybe I I then had this idea should donate payments, and be reminded of various money match some to the YMCA and them unpleasant law-enforcement related memo- separate I can so build shower ries of events which occurred 30 [had] teenagers at the YMCA. years ago. complaining Buch stated that witness orally sup- The court denied motion to appeared to and sixteen be between fourteen press following the November 1994 hear- complaining that old. He said (FOF) ], ing. “Findings The court’s of Fact [ him witness initiated a conversation with (COL) [ ] Conclusions of Law and Order De- drying off. when the two were He testified nying Suppress Defendant’s Motion to State- exactly that not remember what the he could ments” was filed on December 1994. The complaining witness said “because found, alia, court inter that “Defendant was thinking teenag- time I was how come this cooperative willing engage to in the in- showering guys baby er’s—this with all the terrogation process[,]” FOF and that “De- YMCA, knowing .you especially about the Rights fendant understood his Constitutional that, complain- know.” Buch said when the rights and Defendant did waive his voluntari- ing him where the basketball witness asked ly, knowingly, intelligently.” FOF 18. was, him, he took the court rather than tell ease, that De- “[i]n The court concluded this office, complaining witness Won’s voluntarily gave a to De- fendant statement that upset [Won] Buch was “kind of tective Mimaki.” COL 6. announcement, just I time because made announcement, $5,000 plus—plus donation evidentiary phase trial The of Buch’s be- youth donating that cash to the teen $400 gan on December 1994 and lasted February.” Buch then took the program day. testimony one addition to the him where the complaining witness to show witness, complaining prosecution’s evi- racquetball courts were locat- basketball and testimony complain- from the dence included ed. mother, ing investigating HPD witness’s that, officers, complain- prose- Buch because the and Won. At the close of the testified meet his judgment ing Buch witness said that he was late to cution’s moved for a mother, “[w]hy you up asserting prosecution Buch said don’t come acquittal, had you money beyond my give I’ll some so proven a reasonable doubt that room and you complaining complaining taxi[.]” can catch a Buch knew witness n witness anxious, appeared to Buch regard- to be but The court needs to create record went with Buch to ing proposed his room. Buch testified supplemental defense’s complaining that he did not assault the purport give wit- instruction which would an ness, but, rather, 707-733(l)(a). taking when Buch was included offense under And him, money give out of his wallet to the court rules as follows: “[the Notwithstand- ing argument yesterday, witness] touched me down in the made ... genetoria 707-733(l)(a)[,] findsQ] area. And I told com- [sic] [the this court is not an witness], ‘Listen, plaining I appreciate don’t included offense because (l)(a) money right prove this. Take the and leave now. under the state would have to go you—I’ll you I’ll walk compulsion back down- additional element of which ” offering complain- required 707-732(l)(b), stairs.’ Buch denied is not under thus beer, ing cigarettes putting taking witness or acne it out under the law from the defini- face, him, touching hugging and, cream on his tional section of included offenses therefore, him. refuses the instruction over the objection of the defense. requested jury instruction jury lesser guilty charged, included offense of sexual assault in found Buch degree.2 timely the fourth appealed The court and he judgment, refused from the instruction, conviction, reasoning and sentence. if there is evidence or if on the evi- *5 question
dence there would be a
about the
II. DISCUSSION
birth,
date of
giving
then the
of sexual
A. The
Properly
Trial Court
Refused
degree
assault in the
ap-
fourth
would be
Jury
Instruct
on Sexual Assault
propriate where sex assault in the third
Degree.
in the Fourth
(l)(b)
degree
charged
is
under section
as it
Therefore,
jury
“When
instructions or the omission
is here.
I think in certain cir-
appeal,
thereof are at issue on
the standard
question
cumstances where that issue is in
whether,
all,
of review is
when read
even a
and consid-
ques-
scintilla of evidence to
whole,
given
ered as a
tion it or to
instructions
are
be concerned about would
insufficient, erroneous,
prejudicially
make this an included
inconsis-
offense.
tent,
Robinson,
misleading.”
or
State v.
agree
But I
prosecutor],
also
with [the
Hawai'i
922 P.2d
since state of mind this court has ruled is
(citing
Knight,
State v.
80 Hawaii
not a
age
burden of the
as
state
to the
(1996)).
“The court is
defendant,
appro-
that it would not be
obligated
charge
not
jury
respect
priate
the included offense where
to an included offense unless there
ais
ra-
there is no
in
doing
basis
the evidence for
tional basis in the evidence for a verdict
so on the date of
birth
of the
acquitting the defendant of the offense
person
opposed
as
knowledge
charged
convicting
the defendant of the
person’s age.
defendant about the
701-109(5) (1993).
§
included offense.” HRS
indicated, however,
The court
ruling
that the
argues
Buch
might have to be reconsidered
in-
and the
struction on sexual assault in
giving
the fourth de-
not
[i]n
defendant’s lesser included
defense,
gree given if
closing argu-
in
jury
the court stated that
instruction^]
ment, planned
argue
prosecution
that the
sexual assault in
degree
the fourth
not
beyond
proven
had not
a reasonable doubt
lesser included
offense
to sex-
complaining
witness was less than
ual
degree
assault in the third
because to
years
fourteen
old on March
1992. The
require
prove
so rule would
that the state
day,
following
closing arguments,
element; i.e.,
before
compulsion.
[an] extra
that of
court stated:
This conclusion of law was erroneous be-
707-733(1)(a) (1993)
§
provides
perti
2. HRS
by compulsion
in
ual contact
or causes another
person
nent
that ‘‘[a]
commits the offense of
by
to have sexual contact with the actor
degree
sexual assault in die fourth
[t]he
if ...
compulsión!.]”
person knowingly subjects
another
to sex
707-732(l)(b).
misapplied
Kupau
age.
cause it
the State v.
HRS
Sexual
[63
(1980)
is,
degree,
by
in
Haw.
P.2d 250
test. That
assault
the fourth
as defined
]
707-733(l)(a),
requires proof that the
HRS
there was sufficient evidence adduced at
(2)
knowingly
defendant:
caused sexual
trial
that
if believed could have led the
(3) by compulsion.
contact
jury
Because sexual
acquit
defendant
the sexual as
in
degree requires proof
assault
the fourth
degree charge
yet
sault in the third
fact—compulsion—it may
an additional
not
convict him of the lesser included offense
by proof
be established
of the same or less
degree.
of sexual assault in the fourth
required
than all the facts
to establish sexual
testimony
Buch
contends
his
degree
assault
in
in
the third
violation of
appeared
witness
to be between
707-732(l)(b). Therefore, it is not an
HRS
ages
of fourteen and sixteen at the time
included offense as defined
701-
provides
of the assault
a rational basis for
109(4)(a).
acquitting Buch
of sexual assault
the third
him, instead,
degree
convicting
of sexual
Nor is sexual assault
in the fourth
degree.
assault
the fourth
degree
included
sexual assault
the third
degree,
charged
as
in this
under HRS
apparently
recognize
fails to
701-109(4)(c).
injury proscribed by
jury
he
is not entitled to have the
in
707-733(l)(a)
§HRS
is not less serious than
structed on
offense other
than the
injury proscribed by
707-
charged offense unless
that offense is a
732(l)(b);
require proof
both offenses
charged
lesser included offense of the
offense
injury—sexual
same
contact—to establish
701-109(4) (1993),
defined HRS
Moreover,
their commission.
the state of
(2)the
instruction is warranted
the evi-
required
mind
to establish sexual assault in
In this
dence.
case neither condition is satis-
degree—knowingly—does
in
the fourth
fied.
degree
culpability
dicate
lesser
than that
required to
assault in
establish sexual
Sexual assault
the fourth
*6
707-732(l)(b)—
degree
§
third
under HRS
not a lesser included offense of sexual
and,
knowingly
respect
with
to the result
as
degree
charged
in
assault
the third
infra,
liability
respect
discussed
strict
with
case.
this
the attendant circumstance of the victim’s
An
charged
offense is included in the
of-
age.
by proof
fense when
“[i]t
established
Therefore,
we hold that sexual assault
required
same or less than all the facts
degree
fourth
is not included in the
establish the commission of the offense
by
charged offense as defined
701-
701-109(4)(a),
charged[,]”
§HRS
or
dif-
“[i]t
109(4).
charged only
from the
fers
offense
respect
injury
that a less serious
or risk of
707-732(l)(b)
require
2. HRS
does not
injury
person, property,
pub-
to the same
proof that
the defendant have knowl-
lic interest or a different
of mind indi-
state
edge of the attendant circumstance of
cating
degree
culpability
lesser
suffices to
age,
that Buch
the victim’s
so
fact
establish its commission.” HRS
701-
may have been unaware that the com-
109(4)(e).3
years
plaining witness was thirteen
acquit-
old is not a rational basis for
charged
Buch was
with sexual assault
ting him
in the third
of sexual assault
degree,
in the third
in violation of HRS
degree.
707—732(l)(b).
charged
To establish the
offense,
prosecution
required
assuming, arguendo,
Even
that sexual
was
degree
in
prove beyond a
doubt that
assault in the fourth
lesser
reasonable
(1)
offense,
charged
Buch
knowingly
sexual
offense of the
defendant:
caused
cluded
was not entitled to a
included offense
contact
less than fourteen
lesser
offense,
701-109(4)(b),
provides
charged
applicable
is not
3. HRS
which
that “an
offense
attempt
charged
offense or an
to commit
on the facts of this case.
included therein” is a lesser included
offense
and,
instruction because
disagreed
relying
there was no rational ba-
This court
on the
Santos,
acquitting
reasoning
Territory
sis
the evidence for a verdict
v. Delos
him
degree
explained
of sexual assault in the
Haw.
third
that:
convicting him of sexual assault in the fourth
which,
by
offense here is of that class
that,
degree.
jury
Buch contends
“if the
judicial
reason of an unbroken line of
hold-
testimony
believed defendant’s
that the com-
ings, it can be said that
the statute de-
plaining
appeared
witness
to be between the
doing
nounces the mere
of the act as crimi-
ages of 14 and
alleged
the time of the
nal, regardless of
perpetrator
whether the
assault,
acquitted
sexual
it could have
defen-
mind,
generalized
had a bad
intent to
dant of the sexual
degree
assault
the third
engage in a course of criminal conduct.
charge.”
Buch,
ruling unchallenged by
In a
judicial
rape
recognized
Second
is a
however, the trial court found that Buch’s
exception
general
rule that a mis-
knowledge of the attendant circumstance
charge[.]
take of fact is a defense to the
witness was less than
(citation
omitted).
Id. at
Therefore, legislature appropriate is the expressly the court forum to in- ruled that (citation dulge in that decision.” Id. omit- judgment was not entitled to a of ac- ted). quittal prosecution’s based on the failure to prove beyond a reasonable doubt that Buch Silva was decided before the enactment of knowingly acted to the com- Code, the Hawaii Penal 1972 Haw.Sess.L. words, plaining age.. In witness’s other even 2,§ Act at 142. The Hawaii Penal Code jury if thought believed that Buch “originally drafted the Committee on complaining witness was between fourteen Penal Law Revision of the Judicial Council of years old, and sixteen if the trial court’s Hawaii and [is] derivative of the Model interpretation of HRS is cor- recommended, by Penal Code as the Ameri-
rect,
provide
Bueh’s belief does not
a rational
can
Conf.Comm.Rep.
Institute[.]”
Law
No.
acquitting
basis
a verdict
Buch of sexual
Journal,
in 1972 House
pur-
1035. Its
degree.
assault in the third
pose was to
complete reorga-
“effect the first
nization of the criminal law of the State of
This court has not had
occasion
rule on
Hawaii
a redefinition of criminal of-
this issue in the
context
the Hawaii Penal
fensesf.]” Id. As noted in the'dissenting
adoption
Code. Prior to the
of the Penal
*7
Silva,
opinion in
proposed
the
draft of the
Code, the court considered whether a mis-
change
Hawaii Penal Code would
the result
regarding
take of fact
age pro-
the victim’s
Silva, by requiring
in
knowledge
the at-
of
charge
statutory
vided a defense to a
rape.
tendant
age:
circumstance of the victim’s
Silva,
232,
appeal, argued (b) the defendant that “the better intentionally engages he in sexual rule of is to law allow a defense of a mistake intercourse with a female whom he concerning age (Em- of fact prosecu- years knows is less than 12 old. added). trix.” Id. phasis (footnotes §§ Commentary phrase contrary purpose [t]he on 730-732 “unless omitted) plainly appears” is intended to allow following: includes the improper courts to avoid an result when dealing provisions The Code’s with a fails of a statute to indicate years victim old is in under 12 accord specified applies of mind state age
with the lower limit
of effec-
legislative
less than all
histo-
elements
previous
tive consent under
Hawaii law.
ry indicates that
was intended.
this
Hawaii,
Formerly,
many juris-
in
inas
added.)
(Emphasis
undergone
dictions which have not
re-
laws,
cent revisions of their criminal
charged
with sexual assault in
strictly
actor was held
liable with re-
degree,
§
the third
in
violation HRS
707-
spect
age.
732(l)(b),
the victim’s
Such strict
in
which was
1986 when
enacted
liability
contrary
general
to the
runs
Legislature
rape
sodomy
eliminated
principles
liability
penal
set forth in
as offenses
all of
incorporated
the sexual
Chapter
require
culpable
which
degrees
offenses into
of sexual
five
assault.
respect
state of mind
to each
§
ele- See 1986
at
Haw.Sess.L. Act
617-
18;
ment of an offense.
Conf.Comm.Rep. No.
in 1986
Journal,
originally
House
at
938. As
Silva,
n.
491 P.2d at
Haw.
1219 n.
Code,
enacted in the
707-
Penal
HRS
(Levinson, J., dissenting).
736(l)(b) provided
person
“[a]
commits
707-731(1)(b)
Like section
of the 1970 Pro
the offense of sexual
the first
abuse
Code,
posed Draft of
Hawai'i Penal
intentionally
if ...
[h]e
has sexual
[or she]
proscribed
“sex offenses”
sections 707-
contact with
who is less than
another
730(1)(b)
degree),
(rape in the first
707-
years
fourteen
such a
old
causes
733(1)(b) (sodomy
degree),
in the first
707-
him [or
have sexual contact
her].”
HRS
734(1)(b) (sodomy
degree),
in the second
707-736(l)(b) (1976).
Sexual abuse in the
707-736(1)(b) (sexual
abuse
the first de
degree,
first
in violation of
707-
HRS
included,
gree) each
as an element of the
736(l)(b),
like sexual
the third de-
assault
offense, a victim
[the defendant]
“whom
707—732(l)(b)
gree,
in violation of HRS
knows is less
old.”
than
See Stand.
felony.
(Supp.1992) was a
C
class
Journal,
Comm.Rep.
in 1971
No.
Senate
difference
between HRS
1067,1077.
charged
offense is
the course of
commentary
Proposed
As
to the
Draft
revisions,
the 1986
state of mind was
quoted by
explained,
Justice Levinson
under
“intentionally
reduced from
has sexual con-
previous
law,
Hawai'i
defendant
had been
subjects
“knowingly
tact” to
to sexual con-
strictly
held
to the
liable with
tact.”
victim,
contrary
general
which was
Buch,
judg-
support
of his motion for
principles
liability
of criminal
set forth in
acquittal,
ment
relied
Chapter
proposed
Chapter
2 of
code.
argue
specified
of mind
that the state
among
of Act 9 includes
the “General Princi-
§ 707-732(l)(b)—knowingly—applied
ples
Liability”:
of Penal
*8
of
to the attendant circumstance
the victim’s
207—Specified
applies
Sec.
state of mind
out, however,
age.
pointed
As the trial court
to all elements.
legislature
amended the
speci-
of an
When the definition
offense
Proposed
requirement
Draft to eliminate the
fies the state of mind sufficient for the
age
knowledge
of
in those sex
of the victim’s
offense, without
commission of that
distin-
age
offenses where the victim’s
was
at-
thereof,
guishing among the elements
tendant
The relevant Confer-
circumstance.
specified
apply
of mind shall
to all
state
Report states as follows:
ence Committee
offense,
contrary
elements of the
unless a
through 740: Sexual of-
Sections 730
purpose plainly appears.
fenses
9,
207,
44,
agreed
§
has
to amend
1972
at
now
Your Committee
Haw.Sess.L. Act
(1993).
731(1)(b), 733(1)(b),
730(1)(b),
commentary
§
Seetion[s]
702-207
The
to
HRS
737(1)(b)
738(1)
734(1)(b), 736(1)(b),
to
HRS 702-207
clear that
makes
strictly
respect to the attendant
requirement
of actual knowl
is
liable with
eliminate
age
of the victim’s
in a sexual
circumstance
age
edge and to increase the
of consent
assault;
testimony
consequently, Buch’s
that
years....
from 12 to
Your Committee
appeared
victim
to be between fourteen
737(1)(b)
agreed
to
has
to amend Section
years
age
and sixteen
of
is not a rational
age provision
increase the
from fourteen to
acquitting
in
basis
the evidence for verdict
years. Similarly,
sixteen
the Committee
degree
in
him of sexual assault
the third
agreed
requirement of
has
to eliminate the
convicting him of
in the fourth
sexual assault
knowledge, stated
that section.
actual
degree.
agreed to amend
Your Committee has
ficom,
distinguishable
This
and not
case
by deleting
Section 789
subsection
with, In the Interest
John
irreconcilable
prior amendment of
thereof because of
of
Doe,
September
Hawai'i
Born on
and 737 to eliminate
Sections
447,
In that
knowledge requirement.
(ICA)
Appeals
of
held
Intermediate Court
1,
Conf.Comm.Rep.
House
No.
Jour-
guilty
that “a defendant could not be found
1038;
nal,
Conf.Comm.Rep.
at
see also
No.
degree
the offense
second
sexual assault
[of
Journal,
1044;
(Majority), in 1972 House
at
mentally
person,
of a
defective
in violation of
227,
Stand.Comm.Rep. No.
in 1971 House
707-731(1)(b) (1993)4]
HRS
unless the
Journal,
788;
599,
Stand.Comm.Rep.
No.
beyond
proved
a reasonable doubt that
1074;
Journal,
Supplemen-
1971 Senate
complaining
mentally
witness was
defec
Commentary
§§
tal
to
707-730 to 732
HRS
and that the
tive
defendant
aware
(1976);
Commentary
Supplemental
to HRS
mentally
witness was
defec
(1976); Supplemental
§§ 707-733 to 735
tive.” Id. at
317 “knowing” 702-207, apply § state of to to meaning mind to the HRS to distill of 707-732(l)(b). § age— Concurring attendant circumstance of the victim’s HRS and Dis legislature expressly senting Opinion deleted the lan at 619-620. See v. also State Wallace, guage requiring 382, knowledge. 412, 696, 80 Hawai'i 910 P.2d (1996) § 725 (referring to HRS 702-207 to The dissent with step finds fault each of requisite ascertain the state of mind for each preceding analysis. argues It first that offense); penal element of the substantive 707-732(l)(b) language § of HRS is clear Holbron, 27, 39, State v. 80 Hawai'i 904 P.2d that, unambiguous therefore, and and (1995) 912, (same); Kinnane, State v. majority’s attempt to discern the intent of 46, 52-53, Hawai'i 897 P.2d 979-80 legislature plain from outside the sources (1995) (same); Pone, State v. 78 Hawai'i language of the in “disregard statute is (1995) (same); 892 P.2d statutory our established rules of construc- Gaylord, 127, 136-37, 78 Hawai'i 890 P.2d Concurring Dissenting Opinion tion.” at 1167, 1176-77 (1995) (same); Kupau, State v. Second, 621. the dissent contends hav- 76 Hawai'i ing referred—impermissibly according to its (same). argument—to § first HRS the ma- . jority has misinterpreted that require knowledge statute to au- The intent to legislative thorize the court to look to the unambiguous victim’s is not clear and 707—732(l)(b) history § 707-732(l)(b);6 § HRS to from determine the face of in HRS legislature deed, speci- impose liability whether intended the like the intent to strict to apply respect fied state mind to less than all age, to the victim’s intent Third, require the elements of the Id. knowledge “completely offense. invisible majority is, opinion dissent asserts that eye; ‘ignorant’ er- the naked reader roneously commentary way on the absolutely discerning “reifies] on would have no it § solely 702-207 in legisla- plain, HRS order distill a unambiguous, the basis of the ‘directly contrary tive intent that is language to the and obvious of the statute.” Con unequivocally expressed’ language curring Dissenting Opinion a sub- at 620. HRS 707-732(l)(b) penal § stantive Finally, offense.” Id. 621. simply specify does not analysis requisite our “po- dissent contends that state mind tentially circumstances, renders all HPC’s precisely substantive attendant which is unconstitutionally provisions vague.” why proposed, Id. at the Judicial Council and the is, legislature 621. adopted, HRS 702-207—that ambiguity to “resolve[ ] latent found in [this] noted, 707-732(l)(b) previously As many penal Commentary statutes.” to HRS provides pertinent person that “[a] added). (emphasis 702-207 In its commits the offense of sexual assault attempt Scylla, avoid dissent is thus person knowingly third if .... [t]he Charybdis.7 Certainly drawn into the dis subjects to sexual contact another suggesting sent cannot be the rules years who is less than old or fourteen causes statutory construction render HRS 702- such to have sexual contact with the superfluous insignificant; such an in person.” The dissent’s contention that “the itself, terpretation would, violate a “cardinal language of HRS is clear and statutory rule of construction.” See Meth unambiguous face,” Concurring on its ven-Abreu v. Hawaiian Insurance & Guar Dissenting Opinion (capital letters Co., Inc., anty omitted) added), original (emphasis is belied 279, 284 by the dissent’s resort immediate to HRS 701-114(l)(a) 707-700, '702-206, (b), then, §§ Presumably, specific applica- it is the 702-204, 702-206(2), and, significantly, most tion of this rather Presumably Scylla why 7. on the this is the Judicial Council is a headland Italian side of the draft, Messina, necessary, original opposite whirlpool it Straits of Char- deemed in its to in- ybdis. personified Scylla Charybdis [the clude the Homer actor] “whom knows is supra major- imperilling than See as female sea sailors at- [fourteen] less old.” monsters opinion tempting ity navigate at 606-607. between them. *10 rather, statute, but, that the of the the the face applicability, to which general
than its
legislative his-
appear in the
apparently
purpose plainly
con
objects.
dissent
dissent
Commentary to HRS
tory
not authorize
statute.
§ 702-207 does
of the
that HRS
tends
language
beyond
plain
§
the
to look
702-207
the court
to deter
defining penal
a
offense
a statute
appellate
that “the
assertion
The dissent’s
apply
specified
the
intent to
mine whether an
interpreted
have never
courts of this state
all of the elements
mind to less than
state
them to look
§ 702-207 to authorize
HRS
Rather, according to the
appears.”
“plainly
language
unambiguous
beyond
plain and
the
appear
dissent,
“plainly
purpose must
such
statute—ie.,
history—
legislative
a
to its
Concurring and
statute.”
the
the
on
face of
permitting
departure
a
purpose of
for the
(quoting Gaylord,
Dissenting Opinion at 621
§§ 701-
imperatives of HRS
from the
1177)
(empha
P.2d at
at
78 Hawai'i
114(1)(a)
(b), 702-204, 702-205, and 702-
(internal quotation marks
original)
in
sis
206[,]”
Dissenting Opinion at
Concurring and
omitted).
it is
original), suggests
(emphasis
Gaylord,
Notwithstanding
the
the dicta
legislative histo
inquiry into
the result of the
§ 702-207 does not
language of HRS
plain
itself,
inquiry
to which
ry,
than the
rather
interpretation urged
the dissent.
the
allow
Indeed,
objects.
in In the Inter
the dissent
provides
§
HRS 702-207
Doe,
ICA also understood
John
the
est of
specifies
of an offense
the definition
When
require
§
an
702-207 to
examination
HRS
for the com-
of mind sufficient
the state
defining
history
legislative
of the statute
offense,
distin-
of that
without
mission
offense,
than a limited examina
rather
thereof, the
guishing among the elements
statute, when deter
tion of the face of the
apply
shall
to all el-
specified state of mind
contrary purpose plainly
mining
“a
whether
offense,
contrary
unless
ements of the
453-54,
P.2d at
Hawai'i at
appears.” 81
plainly appears.
purpose
Although
inquiry
to a differ
its
led
260-61.
added).
virtually impossi-
(emphasis
It is
Id.
result,
analysis was identical to
the ICA’s
ent
statute
of a criminal
ble to conceive
instant case.
our own
face,
apply
an intent to
plainly, on its
evinces
language
assuming
plain
Even
than all of
specified state of mind to less
unambiguous enough
is
HRS
offense, without distin-
the elements
superfluous,
702-207
to render
of the offense.
guishing among the elements
application of the rules of
dissent’s selective
dissenting opinion
Gaylord nor the
Neither
purpose
statutory construction overlooks the
proposed interpre-
attempts to reconcile the
rules.
of those
any contrary
of HRS
702-207—that
tation
plainly appear on the face of
purpose must
ap-
duty
interpreting
primary
Our
language.
plain
its
statute—with
plying statutes is to ascertain
legislature’s intention
commentary
effect to the
Consulting
to HRS
Although
degree.
the intention
interpreting
fullest
an aid to
702-207 as
primarily
and,
legislature is to be obtained
phrase
particularly,
more
statute
language contained
plainly appears”
from the
contrary purpose
“unless
itself,
rejected
approach
we have
entirely appropriate.8 See HRS 701-105
us to
statutory construction which limits
(Commentary
published and
“shall be
for when aid to
understanding
of the statute
words
may be used as an aid
words,
Code[.]”).
meaning of
construction of the
The Commen-
provisions of this
available,
statute,
there cer-
used in the
phrase “unless a con-
tary explains that the
forbids
tainly can
no rule of law which
be
trary purpose plainly appears” does
use,
may ap-
the words
its
however clear
purpose
appear
must
that such a
mean
which,
senting Opinion
as the dis-
analysis
relies
that our
8. The dissent's contention
concedes,
commentary
legislative
legislature
to distill the
intent
on the
reflect that
sent also
patently disingenuous.
the dissent observes
As
is
elsewhere,
proposed
expressly
amended
legislative
discerned from
intent is
knowledge
requirement
statute to delete
contempo-
report and
the conference committee
age.
the victim’s
Id.
Concurring
reports,
and Dis-
raneous committee
*11
pear
Thus,
superficial
examination.
Finally,
the
the dissent’s fear that
the
plain language rule of construction does
provisions
substantive
frag
the HPC—“a
preclude
not
an examination of sources
organism
ile
subject
that
is
to abuse and
language
other than the
of the statute
requires vigilant protection,”—Concur
[that]
language
itself even when
appears
the
ring
(foot
Dissenting Opinion
and
at 615-616
upon perfunctory
clear
review. Were this
omitted),
potentially
note
will
be rendered
case,
not
may
the
a court
be unable to
unconstitutionally vague as a result of the
adequately discern
underlying policy
the
majority’s analysis,
621,
id. at
is unfounded.
legislature
which the
promulgate
seeks to
apparently
The dissent’s fear
stems from its
and, thus, would be unable to
if
determine
misapprehension that, if a statute is not clear
a literal
produce
construction would
unambiguous
and
requi
unjust result,
absurd or
inconsistent with
site
applicable
state of mind
to the attendant
policies
of the statute.
circumstances, the statute is unconstitution
Honolulu,
City
Richardson v.
County
and
ally vague
give
because it
per
does not
1193,
76 Hawai'i
of-ordinary
son
intelligence
opportunity
(1994) (Klein, J.,
(citations,
dissenting)
inter-
prohibited.
know what conduct is
quotation marks,
omitted).
nal
ellipsis
and
“
Moreover, as the
acknowledges,
dissent
‘the
considered,
soundly reject-
This court
strict
permit
construction rule does not
ed,
argument
an identical
Marley,
v.
State
intent,
ignore legislative
court to
require
nor
450,
54 Haw.
Nor does State v.
61 Haw.
(1979),
dissent,
P.2d
upon by
relied
the failure of a
provide
statute to
for
proposition
stand for the
the rules of
knowledge as an element of a crime does
statutory
may
construction
be used to thwart
ipso
render a statute unconstitu-
facto
unequivocally
legisla-
stated intent of the
tional.
statutory
For not
are there
ture when
interpretation
there is an
any requirement
crimes without
of inten-
gives
statute that
effect to that
intent.
but,
knowledge,
tion or
as we noted in
Meyer,
defendants,
promot-
convicted of
Taylor,
624, 636-37,
ing dangerous
drug by distributing lysergic
(1967),
applicable
test
diethylamide, appealed,
acid
arguing that the
vagueness
overbreadth,
which we
applicable
lysergic
statute did not list
acid
adopted
Boyce
from
Motor Lines v. United
diethylamide
but,
dangerous drug,
as a
in-
States,
342 U.S.
340-1 [72 S.Ct.
stead,
lysergic
diethylamine
listed
acid
as a
96 L.Ed.
dangerous
367]
is not a check-
drug.
testimony
The court noted
lysergic
diethylamide
lysergic
requirements
acid
list of
gener-
but is far more
diethylamine
substances,
acid
were different
al. The test
that:
hallucinogenic
each with
properties, and in-
A criminal
sufficiently
statute must be
legislative history
ferred from the
give
definite to
required
notice of the
legislature
lysergic
intended to list
acid di-
pen-
conduct to one who would avoid its
ethylamide
dangerous drug.
as a
Id. at
alties,
guide
judge
and to
its
so, however,
area of
*12
of fact.
may
ignorance or an honest mistake
cross the line.
of
she]
that he [or
risk
legisla-
statutory rape, such
In the case of
added)
(emphasis
at 1103
509 P.2d
Id.
tion,
liability”
of “strict
of-
in the nature
omitted).9
(footnote
fenses,
upheld
a matter of
has been
as
707-732(l)(b) gives
Certainly
rea-
protect
public policy because of the need
ordinary intel-
to the
of
sonable notice
children[.]
un-
contact with children
ligence that sexual
age
prohibited
(citations omitted).
is
and
fourteen
of
der
Id. 351
at 826
N.W.2d
liability.
subjects
to criminal
Be-
the actor
policy
protecting
children
To further its
apparently believed that
legislature
cause the
adults,
legis-
exploitation
from sexual
“fragile organism[s]
[are]
that
children are
knowledge of the
expressly
lature
deleted
require[] vigilant pro-
subject
to abuse
of sexual assault
age
child’s
as an element
tection,”
a
re-
placed
it
the risk of mistake
age
the child’s
is an attend-
offenses which
age
squarely
child
on the
garding the
so,
fairly
By doing
it
circumstance.
ant
deliberately goes perilously close
adult “who
adult the risk of mistake with
placed on the
proscribed conduct.”
to an area of
age. Allocating that
respect
to the child’s
Moreover,
rejecting knowledge of the
adult does not render HRS
risk to the
age
as an element of sexual
victim
707-732(l)(b),
“the
sub-
let alone
HPC’s
degree,
legislature
assault in the third
unconstitutionally void
provisions,”
stantive
it
merely refusing
change
the law as
was
describes,
vagueness. The statute
with
penal
the enactment of the
existed before
clarity,
proscribes
act it
reasonable
Silva,
232,
Moreover,
“[a]ppellate
review of FOF:
whether
defendant’s
statement to
custodial
was
Defendant
asked about whether
police
product
requires
is the
of coercion
he was on
medication and he indicated
us to ‘examine the entire
and make an
record
hypertension
he was for
condition. Defen-
independent
determination of
ultimate
dant also indicated that the
did
medication
upon
issue
voluntariness’
that
based
re
impair
thinking
judgment
not
his
totality
and ‘the
view
of circumstances sur
any[ ]way.
”
rounding the defendant’s statement.’
Kelekolio,
v.
9. Defendant has been
in the
arrested
(brackets
omitted)
Villeza,
(quoting
69
past and convicted.
1056).
Haw. at
817
How
P.2d
subject
10. Defendant has been
to
ever,
appellate
“it is
well-settled that
physical
during
prior
mental and
abuse
his
pass upon
dependent
court will not
issues
has
complaints against
arrest and
filed
upon
credibility
and the
witnesses
resulting in
suspension.
their
officers
evidence;
weight
province
of the
this is
State,
judge.”
trial
Domingo
appeared
16. Defendant
well
Hawai'i
be
(citation
process.
criminal
aware of the
He
not
quotation
and internal
marks omit
ted).
novice,
by
intimidated or
not
overwhelmed
experience
prior
being
it. His
beaten
At
hearing
on the motion to
not,
any[]way,
has
affected his volun-
suppress,
prior
signing
Buch
testified
giving
the statement.
tariness
tape-recorded
form
giving
HPD
81 and
his
findings
Buch
that these
asserts
demonstrate
statement,
him
Detective Mimaki threatened
that “the defendant’s statements
not
were
bail,
higher
li
paramedic
loss of his
voluntarily
due to
made
the interaction of
cense,
parole
prison
and return to
for a
upon
pressure
social
exerted
the defendant
if
violation Buch did not
statement.
pre-
the detective
the defendant’s
making
Mimaki
Detective
denied
those
mental,
existing physical,
and emotional con-
court,
fact,
threats. The circuit
trier of
ditions.”
found
implicitly
that Detective Mimaki’s tes
timony
See, e.g.,
pressure,”
By
apparently
was more
FOF 15
credible.
“social
(finding
referring
repeated
con
Detective
“Detective Mimaki’s
Mimaki’s
comments,
practice during
interrogation
during
duct
course of the interro-
egregious,
“you’re
questions
gation,
lying.”
not
his
were not
Based on our
was
designed
record, including
to illicit
but to
of the entire
incorrect statements
examination
truthful[,]”
recording
statement,
tape
and that
under
of Buch’s
it is
be
“Defendant
Rights
independent
his Constitutional
and Defen
our
determination that
re-
stood
these
threat,
rights voluntarily,
accompanied by any
did waive
not
dant
his
know marks were
and,
voice,
intelligently.”).
of fact at
a normal
ingly,
As trier
were made in
tone of
suppress hearing,
duty
although
differently,
phrased
a motion
it is the
are the fune-
sophisticated with
to the
particularly
to tell
of the exhortations
equivalent
tional
process
rights
his
as an accused.
approved of in Kele-
criminal
that this court
the truth
explained that
the court
kolio. In that
We, therefore,
knowingly,
that Buch
hold
truth, unaccompanied
to tell the
exhortations
voluntarily
his
intelligently, and
waived
a subse-
promise, do not render
threat or
to remain silent and
rights to counsel and
involuntary because such
quent confession
voluntarily
gave
his statement
he
exhortations
sup-
police. Consequently,
the motion
enhance, rather than di-
calculated to
are
press
properly denied.
minish,
an accused’s
trustworthiness of
confession. Ac-
inculpatory statement or
Buch’s Motion Mental Examina-
C.
police
that a
in-
cordingly,
proposition
Complaining
Witness
tion of
accept
vestigator’s unwillingness to
a sus-
argument
is that
Buch’s final
value
pect’s
of events at face
initial version
denying
his motion for a
trial court erred
per
to “coercion”
se is
amounts
wit
mental examination
own
disingenuous, but falls of its
naive and
motion
review the denial of Bueh’s
ness. We
*14
it,
accept
legiti-
weight; were we to
v.
for an abuse of discretion. See State
agencies to
right
mate
of law enforcement
(1969);
Vincent,
40,
51 Haw.
rior Court
San
64 Cal.2d
In this
Buch asserts that he “is
Cal.Rptr.
raising the
effect of
issue of the
the victim’s
(1966),stated:
upon
mental
emotional condition
his
and/or
general
We
...
requir-
submit
that a
rule
credibility
or her
based
his claim that the
ing
psychiatric
complain-
examination
victim is a
homosexual
that the victim’s
or,
ing
every
witnesses in
sex case
an
attempt
accusation
gain
alternative,
case
such
that rests
Thus,
money from the defendant.”
upon
testimony
the uncorroborated
compelling
maintains there was a
reason for
would,
complaining
many
in-
witness
the mental
of the complaining
examination
stances,
necessary or appropriate.
not be
compel
witness. These
are even
claims
less
Moreover,
might
victims
sex
crimes
be
ling
allegations”
than
physical
the “bald
deterred
requirement
such an absolute
defects or mental
that the court
illness
held
from disclosing such offenses.
were insufficient to warrant court-ordered
Rather than formulate a fixed
rule
examinations in Vincent and Kahinu be
this matter we
believe
discretion
cause,
true,
homosexuality
even if
neither
nor
repose
judge
should
trial
to order a
money
desire for
affect
would
the witness’s
psychiatric
examination
credibility ways
jury
would not be able
involving
witness
a case
a sex violation if
psychiatric
to detect without
the aid of
presents
compelling
the defendant
rea-
hold, therefore,
knowledge. We
that the de
son for such an examination.
[Citation
compel psychiatric
nial of Buch’s
motion to
*15
omitted.]
complaining
examination of the
witness was
(brackets
at
Id.
at 642
P.2d
not an abuse of discretion.
ellipses in original).
argues
subsequent
that a
California
III. CONCLUSION
Russel,
People v.
69 Cal.2d
discussion,
foregoing
Based on the
we af-
(1968),
Cal.Rptr.
expanded
conviction, judgment,
firm Buch’s
and sen-
“compelling
by
the Ballard
need” test
hold
degree.
tence for sexual
the third
assault
ing that a trial court’s discretion to order a
complaining
mental examination of a
witness
Justice,
LEVINSON,
concurring and
liberally
“is
for defendants in
exercised
sex
KLEIN, Justice,
dissenting,
joins.
in which
however,
argument,
abuse cases.” This
fully
I
agree
majority’s holdings,
the
with
specious. The issue in Russel was the ad
(1)
therein,
reasons stated
that:
the.
missibility
psychiatrist’s testimony
of a
based
intelligently,
knowingly,
“Buch
and voluntari-
on his court ordered
examination
the com
ly
rights
waived his
counsel and to
remain
plaining
expressly
witness. The court
stated
voluntarily gave
silent and that he
his state-
that,
case, however,
the
“[i]n
instant
we are
majority
police,”
opinion
ment to the
at sec-
psychiat
not
propriety
concerned with the
H.B.;
(2)
tion
[circuit court’s]
“the
denial
Cal.Rptr.
ric examination
[.]
Id.
”
compel
psychiatric
of Buch’s motion to
original).
443 P.2d at
(emphasis
See
complaining
examination of the
witness was
Cal.Rptr.
also id. 70
struction”
statute,
applica
guage
and the literal
of
“sound”:
language
produce
would not
tion
the
of
change
language of the
cannot
We
result[5], clearly
unjust
inconsis
absurd err
want,
statute,
enlarge upon it
supply a
policies
purposes
and
tent with
of
to make it suit a certain state
in order
statute,
judicial
there is no room for
con
legislate or make laws.
facts.
do not
We
interpretation,
and
and
stat
struction
convinced in its
Even where the Court is
given
according to its
ute must be
effect
Legislature really
own mind
meaning.”
plain and obvious
something not ex-
meant and intended
City
Sandy Beach
Fund v.
Council
Act,
phraseology
it
pressed
Defense
Honolulu,
City
County
and
70 Haw.
authority
depart
plain
has no
from
361, 369,
250,
(quoting
773 P.2d
256
meaning
used.
Palama,
62 Haw.
612 P.2d
State v.
at 291
Meyer,
327 ascertaining underlying legislative its in “authority and we lack the depart from tent, but if plain a literal construction meaning language used.” produce statute unjust “would an absurd and never, result.”6 I submit that this court has II. THE LANGUAGE OF HRS 707- intent,
under
legislative
the banner of
“re
732(1)(b) IS CLEAR AND UNAM-
written”
unambiguous
the clear and
language
BIGUOUS ON ITS FACE.
of a
proscribed by
substantive offense
proscribes
The HPC
the offense of sexual
HPC when a literal construction of the stat
degree
assault
the third
in HRS
707-
produced
ute has not otherwise
an absurd
732,
provides
part:
which
in relevant
unjust
statute,
and
result and
literally
as
degree.
(1)
Sexual assault
in the third
construed, generates no constitutional infirm
person
A
commits the offense of sexual
correct,
ity.7
If I am
questions
then the
assault in
third
if:
(1)
become
language
whether the
of HRS
(a)
person
subjects
The
recklessly
an-
707-732(1)(b)
unambiguous
is clear and
person
other
pen-
to an act of sexual
(2)
written, and,
so,
if
whether a literal con
by compulsion;
etration
produces
struction of the statute
an absurd
(b)
person
unjust
knowingly subjects
and
result.
If the answer to the first
person
sexual contact another
question
“yes”
who is
is
and the answer to the sec
less than
“no,”
old or causes
respectfully
that,
ond is
then I
suggest
fourteen
such a
to have sexual contact
Meyer,
supra,
legisla
accordance with
person;
with the
simply
ture
carry
“did not
its intention into
regarding
liability
(c)
effect”
strict
where the
person knowingly subjects
victim’s
is an element of a sexual offense
sexual contact another
who is
(in
this
sexual assault in
defective,
the third de
mentally
mentally incapaci-
gree,
707-732(1)(b)),
tated,
as defined
physically helpless,
or causes
majority opinion
6. Section II.A.2. of the
nowhere
tion which is more favorable
offender
considers whether a literal construction of HRS
adopted.
will be
707—732(l)(b)
produce
would
an absurd and
438, 443-44,
Rodgers,
State v.
68 Haw.
718 P.2d
unjust result.
275, 277-78,
denied,
reconsideration
work
form of sexual assault
maintain that
there were five material ele-
in
degree proscribed by
the third
HRS
ments of
the offense of sexual assault
707-732(1), except
§
respect
at
degree
charged
third
in the indictment
tendant circumstance of the “victim’s”
'
Buch,
against
prosecution
each of which the
707-732(1)(b),
§
claiming
the context of HRS
required
prove beyond
a reasonable
legislature expressly
that “the
deleted the
guilt.
doubt in order to establish
These five
language requiring knowledge” in that re
(1)
material elements were:
that Buch sub-
gard.
Majority opinion
See
II.A.2.
section
(While
jected
complaining
witness to sexual con-
dispute
I
legislative
do not
that the
(ie.,
conduct, wit,
prohibited
plac-
tact
reports
committee
cited
section II.A.2. of
ing
majority
complaining
his hand on the
witness’
opinion say
they say,
what
(2)
not,
majority
cannot,
penis);
that Buch
that
deny
does
was aware
he was
(ie.,
doing
legislature prescribed “knowingly”
requisite knowing
so
state of
as the
conduct,
requisite
respect
mind with
actor’s
state
mind
connection with
see
707-732(1)(b).)
(3)
702-206(2)(a));
example,
HRS
For
the HRS
that Buch was
majority
holding
takes no
complaining
issue
aware that the
witness was not
(ICA)
(ie.,
Appeals
the Intermediate Court of
requisite knowing
married to him
Doe,
September
In re John
Born
state of mind with
to the attendant
contact,”
81 Hawai'i
I virtue of the state- By way example, my and to illustrate *22 ments, majority unwittingly makes argument, majority’s logic let us extend the my point. respect with to another sexual offense. A person process requires penal
Due
of law
commits a form of sexual assault in
that a
clarity
person knowingly
statute state with
the second
if “[t]he
reasonable
the
subjects
proscribes
provide
person
act it
another
to an act of
and
fixed stan
sexual
penetration by
adjudging guilt,
compulsion[.]”
for
707-
dards
or the statute is
HRS
731(l)(a) (1993).10
Kameenui,
vagueness.
void for
State v.
accordance with HRS
620, 621,
the
of
Haw.
753 P.2d
elements
one variation of
707-731(l)(a)
(i.e.,
person
ordinary HRS
include conduct
Statutes must
act,
intelligence
subjecting
person
another
to a
opportunity
a reasonable
to
sexual
instance, penetration),
prohibited
know what conduct is
this
an attendant cir-
so that he
(i.e., compulsion,
may
or she
choose
cumstance
as manifested
between lawful and
consent,”
9),
supra
“absence of
see
note
and
unlawful conduct.
(i.e.,
being
a result of conduct
the state of
Gaylord,
v.
State
78 Hawai'i
penetrated).
pursuant
I maintain
to
(quoting
State v.
702-204, 702-205, 702-207,
§§
and 701-
Tripp, 71 Haw.
795 P.2d
114(l)(b),
clearly
unambig-
the burden is
and
(1990)).
majority
perceive
fails to
What
uously placed
prosecution
prove
on the
to
precisely
preliminary
is that it is
the HPC’s
(in
ease,
requisite state of mind
this
knowl-
provisions
general principles
penal
and
702-206(2))
edge,
respect
see HRS
with
(i.e.,
701-114(a)
(b),
liability
§§
conduct,
proscribed
attendant circum-
702-207)
702-204, 702-205 and
that make it
stance,
all,
and result of conduct. After
possible—without
resorting
to extrinsic
subjecting
per-
unadorned conduct of
another
penal
sources—for the HPC’s substantive
penetration
son to an act of sexual
is not
clarity
statutes to “state with reasonable
proscribed by the HPC.
they] proscribe
provide
act[s
fixed stan-
adjudging guilt”
per-
dards for
“the
however,
According
majority,
I am
ordinary intelligence”
son of
to have “a rea- merely indulging in an unwarranted and fool-
opportunity
sonable
to know what conduct is
assumption,
unambig-
ish
because a clear and
prohibited
may
or
so
he
she
choose
legislative
require proof
uous
intent
be-
between lawful and unlawful conduct.”
yond
knowledge
a reasonable doubt of
Indeed,
preliminary pro-
respect
but for the HPC’s
to the attendant circumstance of “ab-
general principles
penal
visions and
liabili-
sence of consent” can never be ascertained
court,
ty,
person
combing
this
not to mention “the
of without
and House Jour-
the Senate
ordinary intelligence,”
always
would
be
nals to insure that there is no indication of a
‘
liability.
legislative
impose
to consult sources extrinsic to
intent
strict
forced
How, then,
ordinary
prohib-
HPC itself “to know what conduct is
is a
intelli-
quintessence
vagueness.
gence,
reasonably
or
ited.” That is the
who
believes
his
partner
“willing,”
“eager,”
That is also what is so mistaken about the
her
is
even
whether,
law,
majority’s
he or
is
belief that HRS
know
under the
she
unambiguous”
engaging
physical intimacy
“is not clear and
on its face
the ultimate
felony?
requisite
peril
committing
state mind as
a class B
Must
so,
proscribed
If
if
to the elements of the
offense. If
he or she do research?
what
correct,
majority
legislative journals
per-
every
then
substan-
are not
library?
provision
encompassing
of the HPC
at-
son’s
if the
visits the
tive
What
penetration”
10. "Sexual
is defined in HRS
tercourse.”
includes,
alia, "vaginal
§ 707-700 and
inter
in-
library
law
Marley.
defy
majority
overlooks an ancient and
I
to demon-
701-114(a)
long-forgotten legislative
report?
§§
committee
strate—in the face of HRS
(b),
person neglects
702-204, 702-205,
What if the
to consult his or
and 702-207—that
attorney
subject?
her
on the-
if
requisite
What
states
mind enumerated in
attorney
person’s
post-HPC trespass
does
comb the Senate
apply
offenses do not
Journals,
“merely”
and House
every
but
relies on to each and
element of those offenses.
ostensibly
reckless belief that HRS
Cash,
People v.
419 Mich.
351 N.W.2d
707-732(l)(a)
says?
means what it
And so
majority
opin-
cited
611 of the
Applying
foregoing
on.
construct to the
ion,
equally inapposite. Obviously,
within
HPC,
majority
necessarily
entire
as the
must
limits,
[(legislature may,
constitutional
“the
do, leaves this state’s criminal law in chaos. pursuant
police powers,
to its
define criminal
Marley,
requiring proof
specific
offenses without
aof
*23
(1973),
which is taken out of context at
provide
criminal intent
perpe-
and so
majority
610-611
opinion,
utterly
of the
fails
proceed
peril regardless
trator
at his own
foregoing analysis.
to rebut the
In Marley,
ignorance
his defense of
or an honest mis-
the defendants were convicted of criminal
take of fact.” Id.
premises,
directly
either
post-
or
notice
guage
Meyer,
used.”
61 Haw. at
ed thereon ...
shall be fined not more P.2d at 291.
$250,
imprisoned
than
not more than
months,
three
or both....
III. THE CLEAR AND UNAMBIGUOUS
vague
it
impose
insofar as
did not
“knowl-
nothing
unjust
absurd or
about the clear and
edge”
requisite
as the
state of mind and—
unambiguous
of HRS
707-
presumably—was
therefore defined as a
732(l)(b),
requires—as
insofar as it
prereq-
liability
strict
offense. Id. at
509 P.2d at
culpability—that
uisite to criminal
a defen-
rejected
1102. This court
the defendants’
“knowingly”
dant act
contention, primarily on the bases that “the
“attendant
age.
circumstance” of the victim’s
provide
failure of a statute to
knowledge
Indeed, I
proposition
would think the
un-
as an element of a
ipso
crime does not
facto
extreme,
merely
controversial in
being
render a statute unconstitutional” and
application
one
principles
penal
event,
any
actually recog-
“the trial court
liability
HPC,
permeating the entire
much
knowledge
nized a
element in the crime of
less the sexual offenses that are
one
trespass.”
Id. at
not undertake to agree I it is time to substitute analysis opinion, in that al contained knowledge of sex offenses for emotional primer though I do believe that it is a virtual light fixations and to reform the rules quintessence culpability. criminal on the principles penal liability. sound however, following, repetition bears judicially liability strict which construed here: mistake, given the law of the courts have principle it The common law away. are free to take we accompanied by alone but conduct conduct Silva, 235-36, 238, 244, specific which con certain mental states (Levinson, J., dissenting) cerns, is, say or should concern the law to (citations, marks, quotation ellipsis least, primordial. A mistaken belief omitted) (some points brackets added they if did exist render facts which would omitted). some innocent, negates mens requisite an act HPC, promulgating legislature (the rea required of mind to establish state very “judicially abolished the construed strict offense) and constitutes element liability” that Justice Levinson decried. prosecutions. a defense criminal This *24 penal recognized allowing revising court the rule Need for Hawaii’s law is has malum in se existing to a The criminal stat- defense crime considered self evident. subject origin, part, because of a mistake of fact utes find their for the most qualification organiza- not that the mistake must be the Penal Code of 1869.... The negligence penal rational due to the or carelessness of tion of Hawaii’s laws defies defendant.[11] explanation.... contrast,
By way proposed of [HPC] subject unique organizational prin- [Judicially ... strict liabili- is to a constructed ty century cip[le]. chapters The six in mid-twentieth criminal law is first anachronism; major present general part of the it as the [HPC] an stands statutes, requiring proof knowledge mentioning of 11. It is worth that the December youthful awareness that victims are indeed un- Report 1994 Final of the Committee to Conduct a fourteen, insufficiently protective are of der Comprehensive Penal Review of the Hawai'i ap- young children. To accommodate these Code, by Act mandated 1993 Haw. Sess. L. conflicting principles, parently the committee recommended, alia, 525-26, § 2 at inter that the objective culpability: settled on an standard of legislature pro- to amend HRS defense," according It is an “affirmative which vide: [(1993)] 701-115(2)(b) must be [HRS] degree. Sexual assault in the third A proved by by preponderance the defense of person commits the offense of sexual assault evidence, reasonably defendant "that the degree if: the third person that the other was fourteen believed years age The defendant must or older.” (b) knowingly subjects person sexual prove that the not his or her honest belief person than four- contact another who less fourteen, partner but also that that belief was years causes such a teen old or the circumstances. was a reasonable one under person; provid- have sexual contact with the although negligence negligence, This is ed is an that it ordinarily justify liability criminal will affirmative defense reasonably believed that the other (negligent homicide and a few other ch. defendant [.] older protect being exceptions), the need to offenses fourteen (amending language empha- well, Report at very Final sized). predation may children from sexual accompanying pro- The comment judgment, warrant such a in the committee’s event, posed legislation provides part: in relevant requiring here. In strict standard penal project pro- The 1984-85 code revision establish that his claimed belief defendant to posed liability “statutory rape” persons for the strict reasonable would have been shared 707-732(l)(b), subsections, 707-730(l)(b) unduly does not seem burdensome. date, Legislature rejected proposals. but the these as was true with Id. at 133. To liability predecessor that strict of its commit- The committee concedes the recommendation tee, criterion, excessively culpability legislature the commit- but has not acted on harsh the current tee’s recommendation. at the same time believes penal principles view, majority’s law: those and rules which the children are “class C may felons,” application regardless having have or have both violated HRS 707- 732(l)(b). specific type of offense involved.... egregious hypothetical: Consider a more Chapter gener- [702] establishes the Assume that “go the same two children all principles penal liability; al the criminal way” evening public park. one in a A law is concerned both with a man’s state of disapproving police happens upon officer mind at the time of the crime as well as his flagrante them in chap delicto and makes a chapter conduct. gener- This codifies family ter 571 referral to the court. As the ally accepted principle penal liability majority it, would have the children are voluntary must be coupled based on action felons,” having “class A both violated HRS culpable with a state mind. Here the 707—730(1)(b)(1993). diversity [HPC] would eliminate the wide apparent, me, It is least that it is the phrases of words and used to denote or majority’s construction of HRS 707- connote a state of mind sufficient to im- 732(1)(b) unjust, absurd, that is and trans pose penal liability, limiting provisions rope forms the HPC into “a of sand which of the law to four states of mind: inten- perishes twisting[.]” Emerson, in the R. tional, knowing, negligent. reckless and “Polities,” Essays: Second Series re Rep. Stand. Comm. No. 1971 House printed Complete Ralph Works Waldo Journal, repeat my I suggestion 784-85. (1903),reprinted Emerson 3:199 Shapi in F. nothing unjust that there is absurd or about ro, Dictionary American Le Oxford which, foregoing approach, as discussed Quotations gal above, is super-imposed now on the entire 702-205, 702-206, §§ HPC IV. CONCLUSION and 702-207. fact, majority’s construction of HRS [legislature carry Because “the did not its *25 707—732(l)(b), zealously applied, gen- could effect,” Meyer, intention into 61 Haw. at erate deny results that no one would are not hold, 595 P.2d at I would in accordance unjust, but also point absurd to the 701-114(1)(a) (b), §§ 702-204, with HRS lunacy. posit I two extreme cases to illus- 702-205, 702-206, my point. eighth trate graders, Assume two “knowing” prescribed by state mind boy girl, one a and the 707-732(1)(b) other both of whom § applies to the “attendant cir are reasonably thirteen but who age. cumstance” of the “victim’s” believe the other to be fourteen. While school,
“making they out” after knowingly
engage in indignant “sexual contact.” An
teacher learns of the behavior and refers the family
children to the potential court as “law
violators,” meaning within the ch. (1993 Supp.1995). & According to the