State v. CardusState v. Cardus
- Reporters:
- , ,
- Before:
- Acoba
We hold that the “consent” of an imprisoned person who, under the terms of Hawai‘i Revised Statutes (HRS) § 707-731(l)(c) (1993) is subjected to sexual penetration by a person employed in a state correctional facility, is “ineffective consent” as defined in
We further hold that the words “subject to” in the phrase “subject to sexual penetration” in
I.
A.
The facts adduced at trial are not in dispute. Defendant was employed as an Adult Corrections Officer (ACO) at the 0‘ahu Community Correctional Center (OCCC), a state
While Arneson was incarcerated, Bolos sent her a letter proposing marriage. Unbeknownst to Bolos, Arneson never received the letter. The OCCC administrative staff had retained the letter because it contained money, an apparent violation of prison rules. When no response was made to his proposal, Bolos sent a second letter to Arneson, terminating their relationship. Arneson received this letter.
Upset, Arneson spoke to Defendant about Bolos. Arneson testified Defendant asked “if there was any way he could help [her] contact [Bolos][.]” Arneson responded by requesting Defendant to “find how [sic] what’s going on.” Defendant called Bolos at a telephone number supрlied by Arneson but was unsuccessful in persuading Bolos to speak to him.
Defendant subsequently went to Bolos’s residence but received no response. Bolos indicated he heard someone knocking but did not answer. Defendant offered to return to Bolos’s home the next day. As a result, Arneson prepared a letter for Bolos and asked Defendant to deliver it. Defendant delivered the letter by sliding it under Bo-los’s door.
On April 2, 1993, Defendant was assigned to work in Module 11. That day, Arneson was assigned to work in the Module 11 kitchen. Following lunch, and during “lockdown” of the prisoners, Arneson hid in a cubbyhole so she could remain in the kitchen and talk to Defendant.
With Defendant standing in front of her, Arneson proceeded to engage in fellatio with Defendant. At trial, Arnesоn testified that Defendant made a remark about her “giving him oral sex.” She further testified as follows:
[Prosecutor]: In what context, in what way did this thing about you giving him oral sex come up?
[Arneson]: It was, like, for [Defendant] doing favors he did, like, what was he going to get in return, but then, in a way, I also began to look at [Defendant] in another way. I did begin to like him, but I also felt obligated to him because of the favors that he did for me, because I know what he did, he could have lost his job.
[[Image here]]
[Prosecutor]: How did you feel at that time when [Defendant] approached you knowing that you had talked about favors for favors in the past and you felt some attraction?
[Defense counsel]: I object. That’s not really leading but suggests the answer that he wants.
The Court: Overruled.
[Prosecutor]: Thank you.
The Court: Answer the question.
[Arneson]: Part of me felt obligated; yet part of me, I wanted to do it being incarcerated for about a month then, and prior to being incarcerated, I wasn’t having sex with [Bolos]. So I guess you could say in a way I did want it.
[[Image here]]
[Prosecutor]: Did you also feel obligated?
[Arneson]: Yes, I did.
(Emphases added.)
During recross-examination, Arneson indicated she was a voluntary participant in the encounter:
[Defense counsel]: Like you told us a couple times already, this was like something that just kind of happened; the desire was there to do it, and all the little things just sort of fell into place?
[Arneson]: Yes.
[[Image here]]
[Defense counsel]: It wasn’t [Defendant] saying this is a perfect place; you were the one who said this is a perfect place and he said, yes, referring to how everything just sort of fit together, correct?
[Arneson]: Basically, yes.
Subsequently, Arneson informed her cellmate and another inmate about the occurrence, but instructed them not to say anything about it. A few days later, a Sergeant Sanders asked Arneson about the incident. Because she and her cellmates had agreed not to reveal what had happened and she sought to protect Defendant, Arneson denied the incident had taken place.
Two days later, however, Arneson approached Sergeant Sanders and admitted she had engaged in sexual conduct with Defendant. Arneson reported the incident because her “conscience got to [her]” and, because of her concern “that something could [otherwise] happen to” her fellow inmates.
Consequently, an investigation was initiated ’ by the Honolulu Police Department (HPD). Deteсtive Dennis Kim (Detective Kim) interviewed Defendant on April 22, 1993. After waiving his constitutional rights, Defendant claimed that he knew Arneson just in “passing.” Defendant further denied that he was alone with Arneson on April 2, 1993, and that anything had happened between them.
Defendant did disclose, however, that he delivered Arneson’s letter to Bolos’s residence. He further conceded that “acceptance of any sexual advances from an inmate to an [ACO was] against prison policy” and that his delivery of the letter was also against prison policy. Defendant further ae-knowledged that sexual contact with Arneson “would be a felony.”
On May 6, 1993, Defendant was interviewed by Detective Allan Castro (Detective Castro). Following the waiver of his rights, Defendаnt admitted to the sexual encounter between himself and Arneson. Defendant went on to say, however, that when he realized what was happening, he stepped back and told Arneson that they “[couldn’t] do this.” Defendant explained that he had not earlier disclosed what had transpired because of his concern for Arneson’s emotional problems, and because he did not want to get into “any sort of trouble.”
B.
Following the return of the grand jury indictment in this case,
2
Defendant filed a motion to dismiss the indictment on December 5, 1994. In this motion, Defendant contended that “(1) there was insufficient evidence presented to the grand jury to support the indictment, (2) the grand jury counsel provided inaccurate and misleading legal advice to the grand jury,[
3
] or (3) [HRS]
On March 2, 1995, the court filed its findings of fact (findings), conclusions of law (conclusions) and order denying Defendant’s motion. The court found that the grand jury counsel read the “relevant and applicable sections and the Grand Jury properly determined that consensual sex was of no consequence to the charged offense,” and concluded that there was “substantial and adequate evidence ... to support the charged offense” and the statute was not unconstitutionally vague.
Defendant’s jury trial commenced on May 10, 1995. During voir dire, prospective juror Lawrence Nagashima (Nagashima) stated he had prior experience as an alternate juror in a civil case, “[t]he whole judicial process takes a long time[,]” and “discerning the credibility of each individual that’s testifying on this case ... would be a real difficult portion [sic][.]” Nagashima indicated, however, that “I will try my best.” Defense counsel then examined Nagashima extensively about the effect a lengthy trial might have on his ability to serve as a juror:
[Defense counsel]: There is nothing about that, though, that would cause you to take it out on [Defendant]?
[The Juror]: There would be no reason to, but if I could address the judge.
[Defense counsel]: You can’t do that right now. I will blame Judge Nagata. How long was that trial you were in? Was it a lengthy trial? Did it go on for weeks?
[The Juror]: It was very lengthy, but it was — it wasn’t very complicated either. Maybe about four, five days.
[Defense counsel]: You felt like it took up a lot of time for, I guess, relatively simple kinds of questions?
[The Juror]: There was some complexities in it, yes, but it did take quite a long time.
[Defense counsel]: It wasn’t so much waiting around as the length of the in-court process or was it both?
[The Juror]: Not waiting around but the length of the in-court process.
[Defense counsel]: That won’t be a distraction to you in this case if you felt the same thing happening, taking a long time to get this thing going or finished?
[The Juror]: Of course, like, I vnll try to put aside my feelings and do my best if I have to serve as a juror, but yes.
[[Image here]]
[Defense counsel]: What I am saying, would it bother you to the point where you think you couldn’t really be a good juror in this ease? It could happen?
[The Juror]: I think I would try to be as fair and impartial as I could be. It would bother me, but I will try to do the best I could [sic].
(Emphases added.)
Despite Nagashima’s assurances that he would “do [his] best,” Defendant challengеd Nagashima for cause. The court denied the motion, stating, “Natural process, [sic] Can [sic] be bothered by the proceedings but try to be fair and impartial.” Defendant subsequently used his last peremptory challenge to excuse Nagashima.
The prospective juror selected to take Na-gashima’s place was Lori Uno (Uno). During the prosecutor’s examination, Uno indicated that she would be working at nights • during the trial but would “do [her] best” and believed she could “do the job”:
[Prosecutor]: Do you know how long you would be anticipating having to work at night? ... [A]s a juror, you really need to be attentive to what each of the witnesses have [sic] to say and [the] evidence that is being brought forth so that you can make an informed judgment in this case, right, so if ... because of your work schedule at night, you are going to be tired during the day, we need to know. Do you think that might be a problem?
[The Juror]: I will do my best here. As I said, after I leave here, I will be going down to the office every night maybe till at least nine, ten o’clock; on weekends, also.
[[Image here]]
[Prosecutor]: Do you think that you may be too tired to sit?
[The Juror]: / will do my best.
[[Image here]]
[Prosecutor]: Would you be thinking about what might be happening at your job while we’re [sic] sitting as a juror in this case?
[The Juror]: I think so, because right now ... still I want to be doing my job. As I mentioned yesterday, that the amount of billing I need to get out, money that they — we would lose otherwise.
[[Image here]]
[Prosecutor]: How do you feel about [jury duty]?
[The Juror]: I think I can do the job.
(Emphases added.)
After questioning by defense counsel and his approval of Uno as a prospective juror,’ the prosecutor challenged her for cause on the ground that Uno might not be “as attentive as we might want her to be.” Defense counsel then joined the prosecutor in making the same challenge for cause. The court stated, “She said she’s going to try. I am going to deny your motion.”
D.
Prior to opening statement, the court entertained Defendant’s motion in limine, which sought, inter alia, to exclude Detective Kim from revealing certain of the statements Defendant had given to the police. 4 At that time, the State of Hawafi (the State) made its offer of proof for Detective Kim’s testimony. Then, the following discussion took place concerning Detective Kim’s testimony:
[Defense counsel]: [M]y concern is that there not be reference to [Defendant’s] and/or [Detective Kim’s] legal conclusion that sexual contаct of any nature between a guard and an inmate was a violation of the penal code. And based on what [the State] had just stated to the Court, my understanding is that we’re not going to get into [that] area[ ].
The Court: [Mr. Prosecutor], based on your offer of proof, if you could insure that Detective Kim limits himself to the offer of proof and not get into areas [defense counsel] had discussed, I believe [defense counsel] will be withdrawing his objection.
[[Image here]]
[Defense counsel]: [I]n the statement, actually, I think [Defendant] does go one step beyond [stating that he was wrong]. I think Detective Kim does as well, perhaps. They’re talking in terms of the law, law of sexual assault, basically.
[Prosecution]: We’re not going to get into that.
[[Image here]]
The Court: [Mr. Prosecutor], you will talk to [Detective Kim], explicitly tell him not to get involved in the comments ... about penal code or statute....
[Defense counsel]: With that understanding, I think rather than withdrawing the motion, I am assuming [the State] is stipulating that with respect to these, to the nature of the items I discussed, his witness is not going to go into those areas.
The Court: I believe that’s the stipulation.
[Prosecutor]: Yes. No problem, Your Honor.
(Emphases added.)
However, during cross-examination, Detective Kim violated the stipulation:
[Defense counsel]: And in the context of you asking him about what the prison policy was he was telling you, was he not, that, well, if you take the letter out that’s a violation of prison policy but it’s a less serious type of violation than the sexual contact, correct?
[Detective Kim]: That’s correct.
[Defense counsel]: And that the violation for taking the letter out might result in some type of short suspension or small discipline but sexual contact could result in his losing his job that he had for many years, correct?
[Detective Kim]: He said the, in reference to the sexual contact he did mention it would be a felony.
(Emphasis added.)
At that point, a bench conference was held. Defendant moved for a mistrial based on “a violation of what the court ordered.” Following extensive argument outside the presence of the jury, the court denied Defendant’s motion for mistrial, but ruled that it would instruct the jury that
as far as the law involved in this case as to the offense charged, it is, the court will instruct you as to the law, and the courtand only the court would determine what the law in this particular ease is. It’s not up to any individual to establish what the law is in this particular case.
Defense counsel requested the court to “instruct the jury to disregard the detective’s answers to the questions that [defense counsel] asked on cross-examination and ask it to be stricken.” Apparently agreeing, the court instructed the jurors as follows: “Ladies and gentlemen: Before the break a statement was made by Detective Kim. At this time I am going to ask that you disregard the last statement that was made by Detective Kim. Please disregard the last statement that was made by Mr., Detective Kim before the break.”
A subsequent bench conference ensued in which defense counsel informed the court that the instruction was not sufficient. The court then issued a further instruction as follows: “Ladies and gentlemen: Point of clarification. The court at this time will instruct you to please disregard all of the questions asked by defense counsel during cross-examination and all answers given by Detective Kim during that cross-examination.”
E.
During the State’s rebuttal argument, the prosecutor urged the jury to, in effect, ignore the jury instructions and follow their “common sense.” The prosecutor stated, in relevant part:
Deep down inside, you are thinking, this guy is guilty. But somewhere along the line you are going to start, you think you are getting mixed up with all this legal jargon and stuff. And then you find him not guilty.
Well, just remember then deep down inside that is your common sense talking to you and that is what should stick out more so that [sic] feeling you are getting confused with what these instructions or what the attorneys are arguing. Use your common sense. Deep down inside if you feel this person is guilty, he is guilty. That’s common sense. And I would submit that that is the case here.
(Emphases added.)
Defense counsel immediately objected and another bench conference followed. Defense counsel moved for a mistrial and the court denied the motion as follows:
The Court: Motion for mistrial. I will deny the motion. However, [Mr. Prosecutor], that is an incorrect statement of the law. What you are trying is [sic] find the defendant guilty but at the same time the statement of law is incorrect. Common sense. That is not a correct statement of law. I will strike the statement. I will instruct the jury.
The court then proceeded to instruct the jury by stating, “Ladies and gentlemen, at this time I am going to ask you to please disregard the prosecutor’s last statement. And ask you to please disregard the prosecutоr [sic] last statement.”
II.
Defendant contends that the court erred in (1) denying his pre-trial motion to dismiss the indictment on the grounds of (a) grand jury errors and (b) the unconstitutional vagueness of
III.
A.
In connection with his motion to dismiss the indictment, Defendant challenges the court’s finding No. 5 which stated, “The Grand Jury asked Grand Jury Counsel whether consent negated the offense charged. Counsel read the relevant and applicable sections [
1.
HRS 707-731 provides, in pertinent part: “(1) A person commits the offense of sexual assault in the second degree if: ... (c) The person, while employed in a state correctional facility, knowingly subjects to sexual penetration an imprisoned person....” (Emphasis added.)
Generally, consent to conduct prohibited under our penal code is a defense.
7
Thus, consent to sexual intercourse is a defense to a charge of “rape.” Commentary to
Unless otherwise provided by this Code or by the law defining the offense, consent does not constitute a defense if:
(1) It is given by a person who is legally incompetent to authorize the cоnduct alleged; or
(2) It is given by a person who by youth, mental disease, disorder, or defect, or intoxication is manifestly unable or known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct alleged; or
(3) It is given by a person whose improvident consent is sought to be prevented by the law defining the offense; or
(4) It is induced by force, duress, or deception.
(Emphases added).
While there is no legislative history concerning
2.
The Hawai‘i Penal Code is based on the MPC. Sen. Stand. Comm. Rep. No. 599, in
The objective of
3.
We find additional support for this conclusion in construing
In 1986, the legislature “incorporated all of the sexual offenses into five degrees of sexual assault.” Commentary to
The conduct elements
13
largely common to the sexual assault statutes,
In those provisions of
It is understandable, then, that the ineffective consent provisions of
4.
Because consent is not a defense to the instant offense, finding No. 5 is not “clearly erroneous” 16 and the grand jury counsel’s “advice” to the grand jury was not prejudicial and misleading.
B.
Defendant also challenges conclusions Nos. 1 and 2. Conclusion No. 1 stated:
[HRS § 707-7j51(l)(c) ], under which Defendant stands charged, is not [unconstitutionally vague and in fact states with reasonable clarity the act it proscribes and provides fixed standards for adjudging guilt. State v. Kameenui, 69 Haw. 620,622, 763 P.2d 1250 (1988). Accordingly, the Grand Jury correctly reached its conclusion after bеing properly informed of the applicable statute.
Conclusion No. 2 stated: “Substantial and adequate evidence was presented to the Grand Jury to support the charged offense. It was established that the Defendant was and [sic] [ACO] at the [OCCC] and that during such employment engaged in sexual activity with an inmate at that same facility.”
“A court’s conclusions of law are reviewed under the right/wrong standard. Under the right/wrong standard, we examine the facts and answer the question without being required to give any weight to the trial court’s answer to it.” State v. Tangalin, 79 Hawai‘i 92, 95, 898 P.2d 604, 607 (App.1995) (citations and internal quotation marks omitted).
1.
We conclude that
[A] criminal statute is void for vagueness unless: it 1) gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that hе or she may act accordingly; and 2) provides explicit standards for those who apply the statute, in order to avoid arbitrary and discriminatory enforcement and the delegation of basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.
State v. Gaylord, 78 Hawai‘i 127, 138, 890 P.2d 1167, 1178 (1995) (citations, quotations marks, and brackets omitted).
We believe a reading of the statute as a whole gives a “person of ordinary intelligence a reasonable opportunity to know what is prohibited” and provides explicit standards for those who apply it to avoid arbitrary and discriminatory enforcement.
Defendant maintains “subject to” is ambiguous and connotes the use of force incompatible with Arneson’s voluntary participation in the act of sexual penetration. 17 The meaning of the phrase “subject to,” however, includes “to expose to something: [i.e.:] subject to infection; to cause to experience something;” American Heritage College Dictionary 1352 (3d ed.1993), and “to lay open or expose to the incidence, occurrence, or infliction of, render liable to, something[;] to lay open, expose (physically)[,]” Oxford English Dictionary Vol. XVII 31 (2d ed.1989). A person, then, who knowingly causes an imprisoned person to experience sexual penеtration or knowingly exposes that person to such an experience would be guilty of the offense. The phrase “subject to sexual penetration,” thus, is sufficiently definite to afford a person “reasonable opportunity” to ascertain “what is prohibited.” Accordingly, there being evidence, if believed, that Defendant knowingly exposed Arneson, an imprisoned person, to fellatio, Defendant, a person employed in a state correctional facility, came within the ambit of the statute.
2.
Because we determine that
IV.
Defendant argues that the court erred by refusing to excuse venire persons Nagashima and Uno for cause. Because the court failed to excuse Nagashima for cause, Defendant asserts he was compelled to exercise his last peremptory challenge. Since Defendant had exhausted his peremptory challenges, Defen
dant
“[T]he paramount question in determining whether to excuse for cause a prospective juror is whether the defendаnt would be afforded a fair and impartial trial based on the law and evidence, with the prospective juror as a member of the jury.” State v. Baron, 80 Hawai‘i 107, 114, 905 P.2d 613, 620 (1995) (citing Territory v. Johnson, 16 Haw. 743, 754 (1905); McKeague v. Talbert, 3 Haw.App. 646, 656, 658 P.2d 898, 906 (1983)). Such a decision “must be left to the sound discretion of the trial judge who is in a better position than the appellate court to ascertain from the answers of the juror whether the juror is able to be fair and impartial.” Id. “ ‘An abuse of discretion occurs if the trial court has clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party-litigant.’ ” State v. Loa, 83 Hawai‘i 335, 349, 926 P.2d 1258, 1272, reconsideration denied, 83 Hawai‘i 545, 928 P.2d 39 (1996) (quoting State v. Jackson, 81 Hawai‘i 39, 47, 912 P.2d 71, 79 (1996) (citation and internal quotation marks omitted)).
In the present case, we cannot conclude that the court abused its discretion in denying Defendant’s request to remove Na-gashima for cause. 18 On numerous occasions, Nagashima indicated that he would “do his best” and “try to be as fair and impartial as [he] could be.” When Nagashima was selected, he replied in the affirmative when asked whether he could “be fair and impartial to the defense and to the State.”
While the court could have properly excused Uno, we also cannot conclude that the court abused its discretion in refusing to excuse her for cause. Defendant maintains that because of Uno’s night work, she would not be a well-rested and, therefore, attentive juror. But like Nagashima, Uno offered to “do [her] best” and believed she could “do the job.”
From the responses of these venire persons, we cannot conclude that the court abused its discretion in denying Defendant’s motions to excuse for cause. Accordingly, Defendant was not denied “a fair and impartial trial ... with [Uno] as a member of the jury.”
V.
Defendant argues that the court erred by denying his motions for a mistrial following Detective Kim’s improper testimony about Defendant’s “felony” statement and following the prosecutor’s improper “common sense” rebuttal argument.
“As a general rule, it is for the circuit court to determine whether a ... cautionary instruction or ... a mistrial” is warranted. State v. Kahinu, 53 Haw. 536, 549-50, 498 P.2d 635, 644 (1972), cert. denied, Kahinu v. Hawai‘i, 409 U.S. 1126, 93 S.Ct. 944, 35 L.Ed.2d 258 (1973). The denial of a motion for mistrial is reviewed under an abuse of discretion standard. Loo, 83 Hawai‘i at 349, 926 P.2d at 1272 (citations omitted).
A.
Although in violation of the court’s order, Detective Kim’s testimony that Defendant referred to the instant offense as а “felony” did not require the court to declare a mistrial.
Here, the court immediately issued a curative instruction to the jury following Defendant’s motion for a mistrial due to the witness’s improper statement. It is presumed that the jury follows the court’s instructions.
State v. Samuel,
74 Haw. 141, 149 n. 2, 838 P.2d 1374, 1378 n. 2 (1992) (citing
State v. Amorin,
58 Haw. 623, 629, 574 P.2d 895, 899 (1978)). Therefore, we believe the potential prejudicial effect this statement would have had on the jury was eliminated by the judge’s instruction. Moreover, the mere fact that Defendant was aware that sexual contact with an inmate was a felony had no bearing on whether or not he
B.
Defendant argues that the prosecutor’s “common sense” rebuttal argument constituted prosecutorial misconduct. We agree that the argument was improper. However, “ ‘[pJrosecutorial misconduct warrants a new trial or the setting aside of a guilty verdict only where the actions of the prosecutor have caused prejudice to defendant’s right to a fair trial.’ ” State v. Sanchez, 82 Hawai‘i 517, 528, 923 P.2d 934, 945 (App.) (quoting State v. McGriff, 76 Hawai‘i 148, 158, 871 P.2d 782 (1994)), cert. denied, 84 Hawai‘i 127, 930 P.2d 1015 (1996).
Here, Defendant immediately objected and the court promptly issued a curative instruction. As stated, a jury is presumed to follow the court’s instructions. Amorin, 58 Haw. at 629, 574 P.2d at 899. In light of the immediate curative instruction and the evidence adduced at trial, we conclude that Defendant was not deprived of a fair trial.
VI.
Accordingly, we affirm the August 29,1995 judgment of Defendant’s conviction and sentence.
Notes
. Module 11 is the only female detention area at the O‘ahu Community Correctional Center (OCCC).
. The September 1, 1994 indictment stated that:
On or about the 2nd day of April, 1993, in the City and County of Honolulu, State of [Hawaii], [Defendant-Appellant] GILBERT CARDUS, JR. [ (Defendant) ] while employed in a state correctional facility, to wit, [OCCC], did knowingly subject to sexual penetration an imprisoned person Melanie Arneson [ (Arne-son)], by inserting his penis into her mouth, thereby committing the offense of Sexual Assault in the Second Degree, in violation ofSection 707 — 731 (l)(c) of the [Hawaii] Revised Statutes [ (HRS) ].
. “The position of an independent grand jury counsel was created to ... advis[e] the grand jury as to the law.” State v. Rodrigues, 63 Haw. 412, 417, 629 P.2d 1111, 1115 (1981) (citation omitted).
Defendant argued in his memorandum in support of his motion to dismiss that the grand jury counsel misadvised the grand jury on the issue of consent by saying consent was “a defense [that] is only raised — it could be raised as a defense, say, later on” and “a person cannot consent to be violated, let’s say, of any crime.”
. Defendant‘s motion in limine sought, in part, to exclude Defendant‘s initial statement to Detective Dennis Kim (Detective Kim) where he denied any sexual contact with Arneson, and that portion of Defendant‘s subsequent statement to Detective Allen Castro where he admitted that “he was wrong” in having sexual contact with Arne-son. The written motion did not refer to Defendant‘s statement to Detective Kim acknowledging that the instant offense was a felony.
. Insofar as the last sentence in finding of fact No. 5 states the grand jury “properly determined” that consent was of “no consequence,” it rested on an interpretаtion of
. See supra note 3.
.
. We may use the commentary accompanying, the Hawai‘i Penal Code “as an aid in understanding the provisions of the Code[.]”
.“Sexual penetration” is defined as
vaginal intercourse, anal intercourse, fellatio, cunnilingus, anilingus, deviate sexual intercourse, or any intrusion of any part of a person’s body or of any object into the genital or anal opening of another person’s body; it occurs upon any penetration, however slight, but emission is not required. For purposes of this chapter, each act of sexual penetration shall constitute a separate offense.
. The application of
. The Model Penal Code and Commentaries (Official Draft and Revised Comments 1980) (MPC), however, departs from the HRS in finding “the very severe penalties authorized for forcible rape” inappropriate for such “abuse of custodial authority” and punishes such abuse as a misdemeanor. MPC § 213.3 comment at 390.
. In 1991, sexual assault in the fifth degree was retitled “indecent exposure.” Commentary to
. “Conduct” is an element of offenses defined under our penal code.
.
.
“Strong compulsion” means the use of or attempt to use one or more of the following to overcome a person:
(1) A threat, express or implied, that places a person in fear of bodily injury to the individual or another person, or in fear that the person or another person will be kidnapped;
(2) A dangerous instrument; or
(3) Physical force.
.See supra note 5 (reference to “properly determined”).
. Arguably, Arneson’s participation in the act of fellatio was not “consensual” but, as she explained, the satisfaction of an “obligation” she owed Defendant for his “favors.” Our analysis, however, does not rest on this view.
.