Hawai'i Sexual Assault Statutes
Sexual Assault and Related Offenses under the Hawai'i Revised Statutes (HRS)
§707-730 Sexual assault in the first degree
1. A person commits the offense of sexual assault in the first degree if:
a. The person knowingly subjects another person to an act of sexual penetration by strong compulsion;
b. The person knowingly engages in sexual penetration with another person who is less than fourteen years old;
c. The person knowingly engages in sexual penetration with a person who is at least fourteen years old but less than sixteen years old; provided that:
1. The person is not less than five years older than the minor; and
2. The person is not legally married to the minor;
d. The person knowingly subjects to sexual penetration another person who is mentally defective; or
e. The person knowingly subjects to sexual penetration another person who is mentally incapacitated or physically helpless as a result of the influence of a substance that the actor knowingly caused to be administered to the other person without the other person's consent.
Paragraphs (b) and (c) shall not be construed to prohibit practitioners licensed under chapter 453 or 455 from performing any act within their respective practices.
Sexual assault in the first degree is a class A felony. [L 1986, c 314, pt of §57; am L 1987, c 181, §9; am L Sp 2001 2d, c 1, §§1, 7; am L 2002, c 36, §3; am L 2003, c 62, §1; am L 2004, c 10, §15; am L 2006, c 230, §32; am L 2009, c 11, §72]
Definition of Terms:
- "Sexual penetration": (1) Vaginal intercourse, anal intercourse, fellatio, 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. As used in this definition, "genital opening" includes the anterior surface of the vulva or labia majora; or (2) Cunnilingus or anilingus, whether or not actual penetration has occurred.
- "Strong compulsion": 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. - "Mentally defective": A person suffering from a disease, disorder, or defect which renders the person incapable of appraising the nature of the person's conduct.
- "Mentally incapacitated": A person rendered temporarily incapable of appraising or controlling the person's conduct as a result of the influence of a substance administered to the person without the person's consent.
- "Physically helpless": A person who is unconscious or for any other reason physically unable to communicate unwillingness to an act.
§707-731 Sexual assault in the second degree
1. A person commits the offense of sexual assault in the second degree if:
a. The person knowingly subjects another person to an act of sexual penetration by compulsion;
b. The person knowingly subjects to sexual penetration another person who is mentally incapacitated or physically helpless;
c. The person, while employed:
1. In a state correctional facility;
2. By a private company providing services at a correctional facility;
3. By a private company providing community-based residential services to persons committed to the director of public safety and having received notice of this statute;
4. By a private correctional facility operating in the State of Hawai'i; or
5. As a law enforcement officer as defined in section 710-1000,knowingly subjects to sexual penetration an imprisoned person, a person confined to a detention facility, a person committed to the director of public safety, a person residing in a private correctional facility operating in the State of Hawai'i, or a person in custody; provided that paragraph (b) and this paragraph shall not be construed to prohibit practitioners licensed under chapter 453 or 455 from performing any act within their respective practices; and further provided that this paragraph shall not be construed to prohibit a law enforcement officer from performing a lawful search pursuant to a warrant or exception to the warrant clause; or
d. The person knowingly subjects to sexual penetration a minor who is at least sixteen years old and the person is contemporaneously acting in a professional capacity to instruct, advise, or supervise the minor; provided that:
1. The person is not less than five years older than the minor; and
2. The person is not legally married to the minor.
2. Sexual assault in the second degree is a class B felony. [L 1986, c 314, pt of §57; am L 1987, c 181, §10; am L 1997, c 366, §1; am L 2002, c 36, §1; am L 2004, c 61, §4; am L 2006, c 230, §33; am L 2009, c 11, §73; am L 2016, c 153, §1]
Definition of Terms:
- "Compulsion": Absence of consent, or a threat, express or implied, that places a person in fear of public humiliation, property damage, or financial loss.
§707-732 Sexual assault in the third degree
1. A person commits the offense of sexual assault in the third degree if:
a. The person recklessly subjects another person to an act of sexual penetration by compulsion;
b. The person knowingly subjects to sexual contact another person who is less than fourteen years old or causes such a person to have sexual contact with the person;
c. The person knowingly engages in sexual contact with a person who is at least fourteen years old but less than sixteen years old or causes the minor to have sexual contact with the person; provided that:
1. The person is not less than five years older than the minor; and
2. The person is not legally married to the minor;
d. The person knowingly subjects to sexual contact another person who is mentally defective, mentally incapacitated, or physically helpless, or causes such a person to have sexual contact with the actor;
e. The person, while employed:
1. In a state correctional facility;
2. By a private company providing services at a correctional facility;
3. By a private company providing community based residential services to persons committed to the director of public safety and having received notice of this statute;
4. By a private correctional facility operating in the State of Hawai'i; or
5. As a law enforcement officer as defined in section 710-1000(13), knowingly subjects to sexual contact an imprisoned person, a person confined to a detention facility, a person committed to the director of public safety, a person residing in a private correctional facility operating in the State of Hawai'i, or a person in custody, or causes the person to have sexual contact with the actor; or
f. The person knowingly, by strong compulsion, has sexual contact with another person or causes another person to have sexual contact with the actor
Paragraphs (b), (c), (d), and (e) shall not be construed to prohibit practitioners licensed under chapter 453 or 455 from performing any act within their respective practices; provided further that paragraph (e)(v) shall not be construed to prohibit a law enforcement officer from performing a lawful search pursuant to a warrant or an exception to the warrant clause.
2. Sexual assault in the third degree is a class C felony. [L 1986, c 314, pt of §57; am L 1987, c 181, §11; am L Sp 2001 2d, c 1, §§2, 7; am L 2002, c 36, §§2, 3; am L 2003, c 62, §1; am L 2004, c 10, §15 and c 61, §5; am L 2009, c 11, §74]
Definition of Terms:
- "Sexual contact": Any touching, other than acts of "sexual penetration", of the sexual or other intimate parts of a person not married to the actor, or of the sexual or other intimate parts of the actor by the, person, whether directly or through the clothing or other material intended to cover the sexual or other intimate parts.
§707-733 Sexual assault in the fourth degree
1. A person commits the offense of sexual assault in the fourth degree if:
a. The person knowingly subjects another person, not married to the actor, to sexual contact by compulsion or causes another person, not married to the actor, to have sexual contact with the actor by compulsion;
b. The person knowingly exposes the person's genitals to another person under circumstances in which the actor's conduct is likely to alarm the other person or put the other person in fear of bodily injury;
c. The person knowingly trespasses on property for the purpose of subjecting another person to surreptitious surveillance for the sexual gratification of the actor; or
d. The person knowingly engages in or causes sexual contact with a minor who is at least sixteen years old and the person is contemporaneously acting in a professional capacity to instruct, advise, or supervise the minor; provided that:
1. The person is not less than five years older than the minor; and
2. The person is not legally married to the minor.
2. Sexual assault in the fourth degree is a misdemeanor.
3. Whenever a court sentences a defendant for an offense under this section, the court may order the defendant to submit to a pre-sentence mental and medical examination pursuant to section 706-603. [L 1986, c 314, pt of §57; am L 1991, c 214, §1; am L 2016, c 153, §2 and c 231, §34]
§707-733.6 Continuous sexual assault of a minor under the age of fourteen years
1. A person commits the offense of continuous sexual assault of a minor under the age of fourteen years if the person:
a. Either resides in the same home with a minor under the age of fourteen years or has recurring access to the minor; and
b. Engages in three or more acts of sexual penetration or sexual contact with the minor over a period of time, while the minor is under the age of fourteen years.
2. To convict under this section, the trier of fact, if a jury, need unanimously agree only that the requisite number of acts have occurred; the jury need not agree on which acts constitute the requisite number.
3. No other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section, unless the other charged offense occurred outside the time frame of the offense charged under this section or the other offense is charged in the alternative. A defendant may be charged with only one count under this section unless more than one victim is involved, in which case a separate count may be charged for each victim.
4. Continuous sexual assault of a minor under the age of fourteen years is a class A felony. [L 2006, c 60, §1]
§707-734 Indecent exposure
1. A person commits the offense of indecent exposure if, the person intentionally exposes the person's genitals to a person to whom the person is not married under circumstances in which the actor's conduct is likely to cause affront.
2. Indecent exposure is a petty misdemeanor. [L 1986, c 314, pt of §57; am L 1991, c 214, §2]
§707-741 Incest
1. A person commits the offense of incest if the person commits an act of sexual penetration with another who is within the degrees of consanguinity or affinity within which marriage is prohibited.
2. Incest is a class C felony. [L 1972, c 9, pt of §1; am L 1987, c 176, §1; gen ch 1992]
§707-750 Promoting child abuse in the first degree
1. A person commits the offense of promoting child abuse in the first degree if, knowing or having reason to know its character and content, the person:
a. Produces or participates in the preparation of child pornography;
b. Produces or participates in the preparation of pornographic material that employs, uses, or otherwise contains a minor engaging in or assisting others to engage in sexual conduct; or
c. Engages in a pornographic performance that employs, uses, or otherwise contains a minor engaging in or assisting others to engage in sexual conduct.
2. As used in this section:
"Child pornography" means any pornographic visual representation, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexual conduct, if:
a. The pornographic production of such visual representation involves the use of a minor engaging in sexual conduct; or
The pornographic visual representation has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct.
b. "Community standards" means the standards of the State.
"Computer" shall have the same meaning as in section 708-890.
"Lascivious" means tending to incite lust, to deprave the morals in respect to sexual relations, or to produce voluptuous or lewd emotions in the average person, applying contemporary community standards.
"Material" means any printed matter, visual representation, or sound recording, and includes, but is not limited to, books, magazines, motion picture films, pamphlets, newspapers, pictures, photographs, and tape or wire recordings.
"Minor" means any person less than eighteen years old.
"Performance" means any play, motion picture film, dance, or other exhibition performed before any audience.
"Pornographic" shall have the same meaning as in section 712-1210.
"Produces" means to produce, direct, manufacture, issue, publish, or advertise.
"Sadomasochistic abuse" means flagellation or torture by or upon a person as an act of sexual stimulation or gratification.
"Sexual conduct" means actual or simulated sexual intercourse, including genital-genital contact, oral-genital contact, anal-genital contact, or oral-anal contact, whether between persons of the same or opposite sex, masturbation, bestiality, sexual penetration, deviate sexual intercourse, sadomasochistic abuse, or lascivious exhibition of the genital or pubic area of a minor.
"Visual representation" refers to, but is not limited to, undeveloped film and videotape and data stored on computer disk or by electronic means that are capable of conversion into a visual image.
3. The fact that a person engaged in the conduct specified by this section is prima facie evidence that the person engaged in that conduct with knowledge of the character and content of the material or the performance produced, directed, or participated in. The fact that the person who was employed, used, or otherwise contained in the pornographic material or performance was at that time a minor, is prima facie evidence that the defendant knew the person to be a minor.
4. Promoting child abuse in the first degree is a class A felony. [L 1978, c 214, §1; am L 1982, c 218, §1; am L 1986, c 314, §58; am L 1988, c 91, §1; am L 1997, c 363, §1; am L 2002, c 200, §2; am L 2016, c 16, §1]
§707-751 Promoting child abuse in the second degree
1. A person commits the offense of promoting child abuse in the second degree if, knowing or having reason to know its character and content, the person:
a. Disseminates child pornography;
b. Reproduces child pornography with intent to disseminate;
c. Disseminates any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography;
d. Disseminates any pornographic material which employs, uses, or otherwise contains a minor engaging in or assisting others to engage in sexual conduct; or
e. Possesses thirty or more images of any form of child pornography, and the content of at least one image contains one or more of the following:
1. A minor who is younger than the age of twelve;
2. Sadomasochistic abuse of a minor; or
3. Bestiality involving a minor.
2. As used in this section:
"Child pornography" means any pornographic visual representation, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexual conduct, if:
a. The pornographic production of such visual representation involves the use of a minor engaging in sexual conduct; or
The pornographic visual representation has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct.
b. "Community standards" means the standards of the State.
"Computer" shall have the same meaning as in section 708-890.
"Disseminate" means to publish, sell, distribute, transmit, exhibit, present material, mail, ship, or transport by any means, including by computer, or to offer or agree to do the same.
"Lascivious" means tending to incite lust, to deprave the morals in respect to sexual relations, or to produce voluptuous or lewd emotions in the average person, applying contemporary community standards.
"Material" means any printed matter, visual representation, or sound recording, and includes, but is not limited to, books, magazines, motion picture films, pamphlets, newspapers, pictures, photographs, and tape or wire recordings.
"Minor" means any person less than eighteen years old.
"Pornographic" shall have the same meaning as in section 712-1210.
"Sadomasochistic abuse" means flagellation or torture by or upon a person as an act of sexual stimulation or gratification.
"Sexual conduct" means actual or simulated sexual intercourse, including genital-genital contact, oral-genital contact, anal-genital contact, or oral-anal contact, whether between persons of the same or opposite sex, masturbation, bestiality, sexual penetration, deviate sexual intercourse, sadomasochistic abuse, or lascivious exhibition of the genital or pubic area of a minor.
"Visual representation" refers to, but is not limited to, undeveloped film and videotape, and data stored on computer disk or by electronic means that are capable of conversion into a visual image.
3. The fact that a person engaged in the conduct specified by this section is prima facie evidence that the person engaged in that conduct with knowledge of the character and content of the material. The fact that the person who was employed, used, or otherwise contained in the pornographic material was at that time a minor, is prima facie evidence that the defendant knew the person to be a minor.
4. Promoting child abuse in the second degree is a class B felony. [L 1978, c 214, §2; am L 1982, c 218, §2; am L 1986, c 314, §59; am L 1997, c 363, §2; am L 2002, c 200, §3; am L 2012, c 212, §1; am L 2016, c 16, §2]
§707-752 Promoting child abuse in the third degree
1. A person commits the offense of promoting child abuse in the third degree if, knowing or having reason to know its character and content, the person possesses:
a. Child pornography;
b. Any book, magazine, periodical, film, videotape, computer disk, electronically stored data, or any other material that contains an image of child pornography; or
c. Any pornographic material that employs, uses, or otherwise contains a minor engaging in or assisting others to engage in sexual conduct.
2. As used in this section:
"Child pornography" means any pornographic visual representation, including any photograph, film, video, picture, computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexual conduct, if:
a. The pornographic production of the visual representation involves the use of a minor engaging in sexual conduct; or
b. The pornographic visual representation has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct.
"Community standards" means the standards of the State.
"Computer" shall have the same meaning as in section 708-890.
"Lascivious" means tending to incite lust, to deprave the morals with respect to sexual relations, or to produce voluptuous or lewd emotions in the average person, applying contemporary community standards.
"Material" means any printed matter, visual representation, or sound recording and includes, but is not limited to, books, magazines, motion picture films, pamphlets, newspapers, pictures, photographs, and tape or wire recordings.
"Minor" means any person less than eighteen years old.
"Pornographic" shall have the same meaning as in section 712-1210.
"Sadomasochistic abuse" means flagellation or torture by or upon
"Sexual conduct" means actual or simulated sexual intercourse, including genital-genital contact, oral-genital contact, anal-genital contact, or oral-anal contact, whether between persons of the same or opposite sex, masturbation, bestiality, sexual penetration, deviate sexual intercourse, sadomasochistic abuse, or lascivious exhibition of the genital or pubic area of a minor.
"Visual representation" includes but is not limited to undeveloped film and videotape and data stored on computer disk or by electronic means that are capable of conversion into a visual image.
3. The fact that a person engaged in the conduct specified by this section is prima facie evidence that the person engaged in that conduct with knowledge of the character and content of the material. The fact that the person who was employed, used, or otherwise contained in the pornographic material was at that time a minor, is prima facie evidence that the defendant knew the person to be a minor.
4. Promoting child abuse in the third degree is a class C felony. [L 2002, c 200, pt of §1; am L 2016, c 16, §3]
§707-756 Electronic enticement of a child in the first degree
1. Any person who, using a computer or any other electronic device:
a. Intentionally or knowingly communicates:
1. With a minor known by the person to be under the age of eighteen years;
2. With another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or
3. With another person who represents that person to be under the age of eighteen years;
b. With the intent to promote or facilitate the commission of a felony:
1. That is a murder in the first or second degree;
2. That is a class A felony; or
3. That is another covered offense as defined in section 846E-1, agrees to meet with the minor, or with another person who represents that person to be a minor under the age of eighteen years; and
c. Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time, is guilty of electronic enticement of a child in the first degree.
2. Electronic enticement of a child in the first degree is a class B felony. Notwithstanding any law to the contrary, a person convicted of electronic enticement of a child in the first degree shall be sentenced to an indeterminate term of imprisonment as provided by law. [L 2002, c 200, pt of §1; am L 2006, c 80, §2; am L 2008, c 80, §3]
§707-757 Electronic enticement of a child in the second degree
1. Any person who, using a computer or any other electronic device:
a. Intentionally or knowingly communicates:
1. With a minor known by the person to be under the age of eighteen years;
2. With another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or
3. With another person who represents that person to be under the age of eighteen years;
b. With the intent to promote or facilitate the commission of a felony, agrees to meet with the minor, or with another person who represents that person to be a minor under the age of eighteen years; and
c. Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time;
2. Electronic enticement of a child in the second degree is a class C felony. Notwithstanding any law to the contrary, if a person sentenced under this section is sentenced to probation rather than an indeterminate term of imprisonment, the terms and conditions of probation shall include, but not be limited to, a term of imprisonment of one year. [L 2002, c 200, pt of §1; am L 2006, c 80, §3]
§707-759 Indecent electronic display to a child
1. Any person who intentionally masturbates or intentionally exposes the genitals in a lewd or lascivious manner live over a computer online service, internet service, or local bulletin board service and who knows or should know or has reason to believe that the transmission is viewed on a computer or other electronic device by:
a. A minor known by the person to be under the age of eighteen years;
b. Another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or
c. Another person who represents that person to be under the age of eighteen years, is guilty of indecent electronic display to a child.
2. Indecent electronic display to a child is a misdemeanor. [L 2008, c 80, §1]
§711-1110.9 Violation of privacy in the first degree
1. A person commits the offense of violation of privacy in the first degree if, except in the execution of a public duty or as authorized by law:
a. The person intentionally or knowingly installs or uses, or both, in any private place, without consent of the person or persons entitled to privacy therein, any device for observing, recording, amplifying, or broadcasting another person in a stage of undress or sexual activity in that place; or
b. The person knowingly discloses an image or video of another identifiable person either in the nude, as defined in section 712-1210, or engaging in sexual conduct, as defined in section 712-1210, without the consent of the depicted person, with intent to harm substantially the depicted person with respect to that person's health, safety, business, calling, career, financial condition, reputation, or personal relationships; provided that:
1. This paragraph shall not apply to images or videos of the depicted person made:
a. When the person was voluntarily nude in public or voluntarily engaging in sexual conduct in public; or
b. Pursuant to a voluntary commercial transaction; and
2. Nothing in this paragraph shall be construed to impose liability on a provider of "electronic communication service" or "remote computing service" as those terms are defined in section 803-41, for an image or video disclosed through the electronic communication service or remote computing service by another person.
2. Violation of privacy in the first degree is a class C felony. In addition to any penalties the court may impose, the court may order the destruction of any recording made in violation of this section.
§712-1215.6 Promoting minor-produced sexual images in the second degree
1. A minor commits the offense of promoting minor-produced sexual images in the second degree if the minor:
a. Knowingly uses a computer, cell phone, or any other device capable of electronic data transmission or distribution, to transmit or distribute to another person a nude photograph or video of a minor or the minor's self; or
b. Intentionally or knowingly commands, requests, or encourages another minor to use a computer, cell phone, or any other device capable of electronic data transmission or distribution, to transmit to any person a nude photograph or video of a minor or the minor's self.
2. A person, of any age, commits the offense of promoting minor-produced sexual images in the second degree if the person knowingly possesses a nude photograph or video of a minor transmitted or distributed in violation of subsection (1). It is an affirmative defense under this subsection that the person took reasonable steps to destroy or eliminate the nude photograph or video of a minor.
3. For purposes of this section, a "minor" means any person under eighteen years of age.
4. Promoting minor-produced sexual images in the second degree is a petty misdemeanor. [L 2012, c 213, pt of §1]