1. (1) A person commits the offense of unauthorized entry in a dwelling in the first degree if the person intentionally or knowingly enters unlawfully into a dwelling and another person was, at the time of the entry, lawfully present in the dwelling who:
2. (a) Was sixty years of age or older and the age of the person lawfully present in the dwelling was known or reasonably should have been known to the person who unlawfully entered;
3. (b) Was an incapacitated person; or
4. (c) Had a developmental disability.

5. (2) For the purposes of this section:

   "Developmental disability" shall have the same meaning as in section 333E-2.

   "Incapacitated person" shall have the same meaning as in section 560:5-102.

6. (3) Unauthorized entry in a dwelling in the first degree is a class B felony.
7. (4) It shall be an affirmative defense that reduces this offense to a misdemeanor that, at the time of the unlawful entry:
8. (a) There was a social gathering of invited guests at the dwelling the defendant entered;
9. (b) The defendant intended to join the social gathering as an invited guest; and
10. (c) The defendant had no intent to commit any unlawful act other than the entry.

[L 2011, c 187, §2; am L 2021, c 147, §3]

COMMENTARY ON §708-812.55

Act 187, Session Laws 2011, established the offense of unauthorized entry in a dwelling in the first degree, a class B felony, for the unauthorized entry in a dwelling if another person, at the time of entry, was lawfully present in the dwelling and the person was sixty-two years of age or older, was an incapacitated person, or had a developmental disability. The legislature found that home invasions are traumatic experiences for the victims and may be especially frightening for vulnerable elderly and disabled individuals present during the intrusion. The legislature intended that the presence of a person lawfully in the dwelling shall be a strict liability element and that it shall not be necessary to prove that a defendant knew or had any reason to know that the person lawfully in the dwelling was sixty-two years of age or older, incapacitated, or disabled. Conference Committee Report No. 32.

Act 147, Session Laws 2021, amended this section to: (1) lower the age at which the offense of unauthorized entry in a dwelling in the first degree applies to crimes against seniors, from sixty-two years of age to sixty years of age; and (2) require that the perpetrator knew or reasonably should have known the senior victim's age. The legislature found that the rate of crimes targeting seniors in the State had increased in recent years. The legislature further found that senior citizens are especially vulnerable to long-term physical, emotional, and financial harm from criminal acts and that there was a lack of adequate protection against exploitation of senior citizens under existing law. Act 147 more closely aligned certain Penal Code statutes with common elder abuse scenarios to facilitate appropriate responses by law enforcement and prosecutors. Senate Standing Committee Report No. 1212.

Law Journals and Reviews

Elder Abuse and Laws to Protect Older Persons in Hawaii. 15 HBJ, no. 13, at 93 (2013).