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'663-3
Death by wrongful act.

    (a) When the death of a person is caused by the wrongful act, neglect, or default of any person, the deceased's legal representative, or any of the persons enumerated in subsection (b), may maintain an action against the person causing the death or against the person responsible for the death. The action shall be maintained on behalf of the persons enumerated in subsection (b), except that the legal representative may recover on behalf of the estate the reasonable expenses of the deceased's last illness and burial.

    (b) In any action under this section, such damages may be given as under the circumstances shall be deemed fair and just compensation, with reference to the pecuniary injury and loss of love and affection, including:

  1. Loss of society, companionship, comfort, consortium, or protection;
  2. Loss of marital care, attention, advice, or counsel;
  3. Loss of care, attention, advice, or counsel of a reciprocal beneficiary as defined in chapter 572C;
  4. Loss of filial care or attention; or
  5. Loss of parental care, training, guidance, or education, suffered as a result of the death of the person; by the surviving spouse, reciprocal beneficiary, children, father, mother, and by any person wholly or partly dependent upon the deceased person. The jury or court sitting without jury shall allocate the damages to the persons entitled thereto in its verdict or judgment, and any damages recovered under this section, except for reasonable expenses of last illness and burial, shall not constitute a part of the estate of the deceased. Any action brought under this section shall be commenced within two years from the date of death of the injured person, except as otherwise provided.

    [L 1923, c 245, '1; RL 1925, '2681; am L 1931, c 16, '1; am L 1933, c 139, '1; RL 1935, '4052; RL 1945, '10486; am L 1955, c 205, '1; RL 1955, '246-2; HRS '663-3; am L 1972, c 144, '2(c); am L 1997, c 383, '20]

[[See also the note written above for Section 663-1, above that Section=s annotations.]]

[[annotations:]]
Rules of Court

See HRCP rule 17.

Law Journals and Reviews
Masaki v. General Motors Corp.: Negligent Infliction of Emotion Distress and Loss of Filial Consortium. 12 UH L. Rev. 215.

Punitive Damages in Hawaii: Curbing Unwarranted Expansion. 13 UH L. Rev. 659.

Case Notes
Action barred in Hawaii district courts under Death on the High Seas Act. 230 F.2d 780.

Section does not authorize punitive damages. 644 F.2d 594.

No recovery on the facts, by father and sister of victim of shell explosion. 158 F. Supp. 394.

Parents may bring an action for wrongful death of a viable fetus. 745 F. Supp. 1573.

Cause of action existed for child's loss of consortium despite non-fatal injury to parent. 781 F. Supp. 1487.

Damages parents entitled to for loss of son, discussed. 823 F. Supp. 778.

Limitations period in section applied, where defendants argued that plaintiff=s wrongful death action was derivative of the claims of the estate and therefore barred by applicable statutes of limitation; statute of limitations governing plaintiff=s claim should begin to run when plaintiff experienced plaintiff=s injury, not when plaintiff=s husband knew of husband=s injury. 854 F. Supp. 702.

Prior to this enactment, no action maintainable by parent for death of adult daughter by wrongful act. 27 H. 626.

There was a common-law action for death of spouse or minor child. 2 H. 209; 16 H. 615.

Common-law action based on relationship of husband and wife and parent and child not abrogated by this section prior to 1955 amendments. 37 H. 571. See 45 H. 373, 394, 369 P.2d 96, reh'g den. 45 H. 443, 369 P.2d 114, as to effect of 1955 amendments.

Child has no cause of action for injuries to parent not resulting in death. 41 H. 634; 244 F.2d 604.

Action against employer barred where dependent of decedent has remedy for compensation under Workmen's Compensation Act. 41 H. 422; 42 H. 518.

Effect of Workmen's Compensation Law prior to 1931 amendments. 32 H. 61; 32 H. 153.

Relationship between this section and '663-7 discussed. 45 H. 373, 369 P.2d 96.

Damages: 34 H. 5; 34 H. 426; 40 H. 691.

Damages to widow and children for loss of support and loss of love, care, affection and guidance. 282 F.2d 599.

Recovery for loss of support, computation of. 245 F. Supp. 981, 1012-1016, aff'd 381 F.2d 965.

Recovery by widow and child of decedent for loss of consortium and parental care. 245 F. Supp. 981, 1017-1018, aff'd 381 F.2d 965.

Although trial court may not have been completely accurate in certain particulars in awarding damages, not set aside if the total award is reasonable. 499 F.2d 866.

Parties, prior to 1933 amendment. 32 H. 611. See 135 F. Supp. 376; 244 F.2d 604.

Dependents, who are. 34 H. 426, 442.

The limitations period is tolled by '657-13 during minority of surviving children. 63 H. 273, 626 P.2d 182; 69 H. 410, 745 P.2d 285.

If decedent had no cause of action, survivors had none. 69 H. 95, 735 P.2d 930.

Since claims were derivative in nature and arose from a single person, defendant was not underinsured. 70 H. 42, 759 P.2d 1374.

Section does not distinguish between minor and adult children. 71 H. 1, 780 P.2d 566.

Section entitles any person wholly or partially dependent on deceased to raise claims for both pecuniary injuries and loss of love and affection. 75 H. 544, 867 P.2d 220.

A breach of express warranty action could be a basis for a derivative wrongful death action brought pursuant to this section. 86 H. 383 (App.), 949 P.2d 1004.

As cause of action for punitive damages survives the death of the decedent under '663-7, punitive damages are not recoverable in an action under this section. 87 H. 273 (App.), 954 P.2d 652.

Claims brought under this section must relate to the general loss of love and affection suffered by the designated survivors. 87 H. 273 (App.), 954 P.2d 652.

Cited: 349 F.2d 693, 698; 134 F. Supp. 868, 870; 351 F. Supp. 185, 187; 41 H. 603, 604; 45 H. 443, 444, 369 P.2d 96.

[[Chapters 701-713, APenal Code@]]
[[Chapter 706, ADisposition of Convicted Defendants@]]
[[Part IV, AImprisonment@]]

'706-670.5
Notice of parole or final unconditional release.

    (1) As used in this section, the following terms have the following meanings:

    "Offense against the person" means any of the offenses described in chapter 707 and includes any attempt to commit any of those offenses.

    APrisoner" or "parolee" means a person who has been convicted of an offense against the person.

    ASurviving immediate family member" means a person who is a surviving grandparent, parent, sibling, spouse or reciprocal beneficiary, child, or legal guardian of a deceased victim.

    AVictim" means the person who was the victim of the offense against the person for which the prisoner or parolee was convicted.

    (2) The Hawaii paroling authority shall give written notice of the parole or release from parole of a prisoner or parolee to each victim who has submitted a written request for notice or to a surviving immediate family member who has submitted a written request for notice.

    (3) The department of public safety shall give written notice of the final unconditional release of a prisoner or parolee, who has not been previously paroled or discharged, to each victim who has submitted a written request for notice or to a surviving immediate family member who has submitted a written request for notice.

    (4) The authority or department, as the case may be, shall provide written notice to the victim or surviving immediate family member at the address given on the written request for notice or such other address as may be provided by the victim or surviving immediate family member, not less than ten days prior to parole or final unconditional release. The authority or department, in its discretion, may instead give written notice to the witness or victim counselor programs in the prosecuting attorney's office in the county where the victim or the surviving immediate family member resides.

    (5) Neither the failure of any state officer or employee to carry out the requirements of this section nor compliance with it shall subject the State, the officer, or employee to liability in any civil action. However, such failure may provide a basis for such disciplinary action as may be deemed appropriate by a competent authority.

    [L 1983, c 184, '2(2); am L 1985, c 227, '1; am L 1987, c 338, '10; am L 1989, c 211, '8; am L 1997, c 383, '66]

[[annotations:]]
Revision Note

Subsection designations changed to conform to style of Penal Code.

Cross References
Notice of escape, see '706-673.

Sex offender registration, see chapter 846E.

COMMENTARY ON '706-670.5
Act 184, Session Laws 1983, added this section to require notification to a crime victim if a defendant who harmed the victim is released into the community after conviction. This addition was intended to insure that crime victims "are treated with fairness and respect" and that agencies in the criminal justice system cooperate with each other to provide information and other help to crime victims. House Conference Committee Report No. 46.

Act 227, Session Laws 1985, amended this section so that:

  1. victims or surviving immediate family members of a deceased victim are notified whenever the offender is paroled or unconditionally released; and
  2. in lieu of notifying a victim or surviving family member, the appropriate authorities may notify the witness or victim counselor programs in the county where the victim or a family member resides.

Under prior law, only the victim was notified of the parole or unconditional release. House Conference Committee Report No. 5, Senate Conference Committee Report No. 4.

Act 383, Session Laws 1997, amended this section by amending the definition of "surviving immediate family member" to include a reciprocal beneficiary. The amendment establishes the status of reciprocal beneficiaries and provides certain state governmental benefits to those with that status. Among the benefits extended to reciprocal beneficiaries which are substantially equivalent to those extended to spouses is legal standing relating to victims rights. Conference Committee Report No. 2.

'706-673
Notice of escape.

    (1) As used in this section, the following terms have the following meanings:

    "Offense against the person" means any of the offenses described in chapter 707 and includes any attempt to commit any of those offenses.

    APrisoner" means a person who has been convicted of an offense against the person.

    ASurviving immediate family member" means a person who is a surviving grandparent, parent, sibling, spouse or reciprocal beneficiary, child, or legal guardian of a deceased victim.

    AVictim" means the person who was the victim of the offense against the person for which the prisoner was convicted.

    (2) Upon written request, the department of public safety shall give notice of the escape of a prisoner, immediately following the escape, by the most reasonable and expedient means available, to each victim or a surviving immediate family member of the victim, through the victim witness assistance program in the county where the crime was committed.

    (3) Neither the failure of any state officer or employee to carry out the requirements of this section nor compliance with it shall subject the State, the officer, or employee to liability in any civil action. However, such failure may provide a basis for such disciplinary action as may be deemed appropriate by a competent authority.

    [L 1990, c 193, '1; am L 1997, c 383, '67]

[[annotations:]]
Cross References

Sex offender registration, see chapter 846E.

COMMENTARY ON '706-673
Act 193, Session Laws 1990, added this section which would require the department of public safety to notify victims or their next-of-kin of an escape by the prisoner who committed a crime against the victim. The legislature felt this requirement would make victims of crimes feel more secure knowing they would be notified immediately if the prisoner escaped. Senate Standing Committee Report No. 2935.

Act 383, Session Laws 1997, amended this section by amending the definition of "surviving immediate family member" to include a reciprocal beneficiary. The amendment establishes the status of reciprocal beneficiaries and provides certain state governmental benefits to those with that status. Among the benefits extended to reciprocal beneficiaries which are substantially equivalent to those extended to spouses is legal standing relating to victims rights. Conference Committee Report No. 2.

[[Chapters 701-713, APenal Code@ (continued)]]
[[Chapter 707, AOffences Against the Person@]]
[[Part VII, AExtortion@]]

'707-769
Defenses to extortion.

    (1) It is a defense to a prosecution for extortion as defined by paragraph (1) of section 707-764 that the defendant:

  1. Was unaware that the property or service was that of another; or
  2. Believed that the defendant was entitled to the property or services under a claim or right or that the defendant was authorized, by the owner or by law, to obtain or exert control as the defendant did.

    (2) If the owner of the property is the defendant's spouse or reciprocal beneficiary, it is a defense to a prosecution for extortion under paragraph (1) of section 707-764 that:

  1. The property which is obtained or over which unauthorized control is exerted constitutes household belongings; and
  2. The defendant and the defendant's spouse or reciprocal beneficiary were living together at the time of the conduct.

    (3) "Household belongings" means furniture, personal effects, vehicles, or money or its equivalent in amounts customarily used for household purposes, and other property usually found in and about the common dwelling and accessible to its occupants.

    (4) It is an affirmative defense to a prosecution for extortion as defined in paragraphs (1) and (2) of section 707-764 and as further defined by subparagraphs (e), (f), (g), and (i), that the defendant believed the threatened accusation, penal charge, or exposure to be true, or the proposed action of a public servant was justified, and that the defendant's sole intention was to compel or induce the victim to give property or services to the defendant due the defendant as restitution or indemnification for harm done, or as compensation for property obtained or lawful services performed, or to induce the victim to take reasonable action to prevent or to remedy the wrong which was the subject of the threatened accusation, charge, exposure, or action of a public servant in circumstances to which the threat relates.

    (5) In a prosecution for extortion as defined in paragraph (1) of section 707-764, it is not a defense that the defendant has an interest in the property if the owner has an interest in the property to which the defendant is not entitled.

    [L 1979, c 106, pt of '1; gen ch 1993; am L 1997, c 383, '68]

[[annotations:]]
Case Notes

Defendant's attempt to obtain plaintiff's property was made under claim of [sic] right. 855 F. Supp. 1156.

COMMENTARY ON ''707-764 TO 769
Act 106, Session Laws 1979, established these sections as part of a consolidation of laws pertaining to extortion wherein the Legislature sought to make those laws simpler and more comprehensive. The Legislature rejected a provision making acts which caused the victim "great mental anguish" extortion in the first degree on the grounds that such a standard is too subjective, and would differ from one individual to the next. Conference Committee Report No. 43.

Act 28, Session Laws 1993, amended '707-766 by stating the elements of the offense of extortion in the second degree in the disjunctive, consistent with the intent of the 1979 legislature in enacting that section, and by making the language of that section gender neutral. House Standing Committee Report No. 190, Senate Standing Committee Report No. 1121.

Act 383, Session Laws 1997, amended '707-769 to provide a defense to prosecution for extortion to reciprocal beneficiaries. In establishing the status of reciprocal beneficiaries, the Act provides certain rights and benefits, and represents a commitment to provide substantially similar government rights to those couples who are barred by law from marriage. Conference Committee Report No. 2.

[[Chapters 701-713, APenal Code@ (continued)]]
[[Chapter 708, AOffences Against Property@]]
[[Part IV, ATheft and Related Offences@]]

'708-834
Defenses: unawareness of ownership; claim of right; household belongings; co-interest not a defense.

    (1) It is a defense to a prosecution for theft that the defendant:

  1. Was unaware that the property or service was that of another; or
  2. Believed that the defendant was entitled to the property or services under a claim of right or that the defendant was authorized, by the owner or by law, to obtain or exert control as the defendant did.

    (2) If the owner of the property is the defendant's spouse or reciprocal beneficiary, it is a defense to a prosecution for theft of property that:

  1. The property which is obtained or over which unauthorized control is exerted constitutes household belongings; and
  2. The defendant and the defendant's spouse or reciprocal beneficiary were living together at the time of the conduct.

    (3) "Household belongings" means furniture, personal effects, vehicles, money or its equivalent in amounts customarily used for household purposes, and other property usually found in and about the common dwelling and accessible to its occupants.

    (4) In a prosecution for theft, it is not a defense that the defendant has an interest in the property if the owner has an interest in the property to which the defendant is not entitled.

    [L 1972, c 9, pt of '1; am L 1979, c 106, '8; am L 1980, c 232, '41; gen ch 1993; am L 1997, c 383, '69]

[[annotations:]]
COMMENTARY ON '708-834
[[Note: the footnotes in this commentary, numbered 1-3 and each enclosed in single brackets, are given at the end of all the annotations on this Section.]]

Both the defenses allowed under '708-834(1) are probably unnecessary in light of an informed reading of the substantive definitions of the various modes of theft. The existence of either condition (a) or (b) would relieve the actor of the culpability required to establish the offense: the actor could not have intended to deprive another of property (or refuse payment for services) unless the actor was aware that the property or services were that of another; and a claim of right, assuming that it amounts to a belief that the actor is the true owner, would not only indicate that the actor did not have the requisite mental state, it would constitute a mistake of fact defense under '702-218. The summary and restatement of this subsection is principally for purposes of clarity and emphasis. The marital defense of subsection (2) is based upon various theories. First, the uncertainty of ownership of much household property, together with the potential bitterness of interspousal conflict, provide numerous opportunities for a miscarriage of justice.[1] Alternatively, it is said that household belongings, defined in subsection (3), constitute a kind of "common pool of wealth," and that misappropriations in this context are so generally tolerated as not to deviate substantially from socially-accepted norms. A wife who rifles her husband's wallet, or a husband who pawns his wife's jewelry, does not present a grave danger to the community, so long as the activity is so confined. Finally, criminal courts are unsuited to handle breakdowns in the family structure of which interspousal theft complaints are only a symptom.[2] Subsection (4) is intended to cover the situation where an aggrieved person attempts to seek an informal solution by threatening legal action unless restitution, indemnification, or compensation is made. The most significant instance of this device is the waiver of prosecution commonly offered by insurance companies in exchange for the return of valuable merchandise. The rationale here is that it is hardly fair to penalize someone for trying to recover one's own goods (or the value thereof), nor could the penal law realistically expect to suppress such natural inclinations. Subsection (5) merely requires that the interest which the actor asserts under a claim of right must be inconsistent with that of the victim. The premise is that if the interest is not inconsistent, it does not justify the actor's possession as opposed to that of the victim. Furthermore, it is felt that "co- owners should be as well protected against the depredations of other co-owners as they are against outsiders."[3]

SUPPLEMENTAL COMMENTARY ON '708-834
Act 106, Session Laws 1979, amended this section as part of a consolidation of laws pertaining to extortion.

Act 232, Session Laws 1980, added subsection (4) and the words "co-interest not a defense" in the section heading to restore language erroneously omitted by L 1979, Act 107, '8.

Act 383, Session Laws 1997, amended this section to provide a defense to prosecution for theft of property to reciprocal beneficiaries. In establishing the status of reciprocal beneficiaries, the Act provides certain rights and benefits and represents a commitment to provide substantially similar government rights to those couples who are barred by law from marriage. Conference Committee Report No. 2.

Case Notes
Claim of right defense discussed. 62 H. 25, 608 P.2d 855.

Claim of right defense to theft under this section does not apply in a prosecution for robbery. 83 H. 264, 925 P.2d 1088.

Subsection (1)(b)=s defense was not applicable to offense of unauthorized control of propelled vehicle ('708-836). 10 H. App. 200, 862 P.2d 1073.

________________
'708-834 Commentary [[Footnotes]]:

1. M.P.C., Tentative Draft No. 2, comments at 104 (1954).

2. Id. at 104-5.

3. See Prop. Mich. Rev. Cr. Code, comments at 246.

[[Chapters 701-713, APenal Code@ (continued)]]
[[Chapter 709, AOffences Against the Family and Against Incompetents@]]

'709-906
Abuse of family or household members; penalty.

    (1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer under subsection (4). The police, in investigating any complaint of abuse of a family or household member, upon request, may transport the abused person to a hospital or safe shelter. For the purposes of this section, "family or household member" means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit.

    (2) Any police officer, with or without a warrant, may arrest a person if the officer has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member and that the person arrested is guilty thereof.

    (3) A police officer who has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member shall prepare a written report.

    (4) Any police officer, with or without a warrant, may take the following course of action where the officer has reasonable grounds to believe that there was physical abuse or harm inflicted by one person upon a family or household member, regardless of whether the physical abuse or harm occurred in the officer's presence:

  1. The police officer may make reasonable inquiry of the family or household member upon whom the officer believes physical abuse or harm has been inflicted and other witnesses as there may be;
  2. Where the police officer has reasonable grounds to believe that there is probable danger of further physical abuse or harm being inflicted by one person upon a family or household member, the police officer lawfully may order the person to leave the premises for a period of separation of twenty-four hours, during which time the person shall not initiate any contact, either by telephone or in person, with the family or household member; provided that the person is allowed to enter the premises with police escort to collect any necessary personal effects;
  3. Where the police officer makes the finding referred to in paragraph (b) and the incident occurs after 12:00 p.m. on any Friday, or on any Saturday, Sunday, or legal holiday, the order to leave the premises and to initiate no further contact shall commence immediately and be in full force, but the twenty-four hour period shall be enlarged and extended until 4:30 p.m. on the first day following the weekend or legal holiday;
  4. All persons who are ordered to leave as stated above shall be given a written warning citation stating the date, time, and location of the warning and stating the penalties for violating the warning. A copy of the warning citation shall be retained by the police officer and attached to a written report which shall be submitted in all cases. A third copy of the warning citation shall be given to the abused person;
  5. If the person so ordered refuses to comply with the order to leave the premises or returns to the premises before the expiration of the period of separation, or if the person so ordered initiates any contact with the abused person, the person shall be placed under arrest for the purpose of preventing further physical abuse or harm to the family or household member; and
  6. The police officer may seize all firearms and ammunition that the police officer has reasonable grounds to believe were used or threatened to be used in the commission of an offense under this section.

    (5) Abuse of a family or household member and refusal to comply with the lawful order of a police officer under subsection (4) are misdemeanors and the person shall be sentenced as follows:

  1. For the first offense the person shall serve a minimum jail sentence of forty-eight hours; and
  2. For a second offense and any other subsequent offense that occurs within one year of the previous offense, the person shall be termed a "repeat offender" and serve a minimum jail sentence of thirty days. Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.

    (6) Whenever a court sentences a person pursuant to subsection (5), it also shall require that the offender undergo any available domestic violence intervention programs ordered by the court. However, the court may suspend any portion of a jail sentence, except for the mandatory sentences under subsection (5)(a) and (b), upon the condition that the defendant remain arrest-free and conviction-free or complete court-ordered intervention.

    (7) For any subsequent offense occurring within two years after a second misdemeanor conviction, the person shall be charged with a class C felony.

    (8) Any police officer who arrests a person pursuant to this section shall not be subject to any civil or criminal liability; provided that the police officer acts in good faith, upon reasonable belief, and does not exercise unreasonable force in effecting the arrest.

    (9) The family or household member who has been physically abused or harmed by another person may petition the family court, with the assistance of the prosecuting attorney of the applicable county, for a penal summons or arrest warrant to issue forthwith or may file a criminal complaint through the prosecuting attorney of the applicable county.

    (10) The respondent shall be taken into custody and brought before the family court at the first possible opportunity. The court may dismiss the petition or hold the respondent in custody, subject to bail. Where the petition is not dismissed, a hearing shall be set.

    (11) This section shall not operate as a bar against prosecution under any other section of this Code in lieu of prosecution for abuse of a family or household member.

    (12) It shall be the duty of the prosecuting attorney of the applicable county to assist any victim under this section in the preparation of the penal summons or arrest warrant.

    (13) This section shall not preclude the physically abused or harmed family or household member from pursuing any other remedy under law or in equity.

    (14) When a person is ordered by the court to undergo any domestic violence intervention, that person shall provide adequate proof of compliance with the court's order. The court shall order a subsequent hearing at which the person is required to make an appearance, on a date certain, to determine whether the person has completed the ordered domestic violence intervention. The court may waive the subsequent hearing and appearance where a court officer has established that the person has completed the intervention ordered by the court.

    [L 1973, c 189, '1; am L 1980, c 106, '1 and c 266, '2; am L 1981, c 82, '37; am L 1983, c 248, '1; am L 1985, c 143, '1; am L 1986, c 244, '1; am L 1987, c 360, '1; am L 1991, c 215, ''2, 4 and c 257, ''1, 2; am L 1992, c 290, '7; am L 1994, c 182, ''1, 3; am L 1995, c 116, '1; am L 1996, c 201, '2; am L 1997, c 321, '1, c 323, '1, and c 383, '70; am L 1998, c 172, '8; am L 1999, c 18, '18]

[[annotations:]]
Cross References

Shelters, unlawful entry, see '708-816.5.

COMMENTARY ON '709-906
This section was added by Act 189, Session Laws 1973, to provide protection to a spouse from being physically abused by the other spouse. Standing Committee Report No. 828 (1973) states: "It is apparent today that there is little, if any, protection for a spouse beaten by the other spouse.... This bill is intended to alleviate this problem to a certain extent. A police officer, upon arrival at the scene, is given the power to arrest if the offense is committed in his presence. Section 571-14(2)(B) gives the family court exclusive jurisdiction over any adult charged with an offense, other than a felony, against the person of the defendant's husband or wife. Section 571-42 establishes the procedure to be followed in such cases. It is intended by your Committee that these laws be enforced to the extent that they will afford the abused spouse the necessary protection needed. Further, unless it appears adverse to the best interests of all concerned, the family unity should be retained without the necessity of the abusing spouse being branded a 'criminal.' Toward this end, the courts are asked to aid these persons needing its assistance in order that they may be rehabilitated."

SUPPLEMENTAL COMMENTARY ON '709-906
Act 106, Session Laws 1980, amended subsection (1) to authorize the police to transport the victim of spouse abuse to a safe place when in the investigating officer's judgment it is reasonably necessary to do so and there is no effective alternative transportation. Senate Standing Committee Report No. 667-80, House Standing Committee Report No. 875-80.

Act 266, Session Laws 1980, amended subsections (2) and (3) to authorize a police officer to make an arrest or take the actions specified in subsection (3) regardless of whether the physical abuse occurred in the officer's presence or not. The changes to this section and the enactment of '709-907 were intended to expand the protection and remedies available to a spouse who is the victim of non-felonious offense against the person committed by the other spouse. While recognizing the expertise of the family court, the conference committee stated that "your Committee is concerned that family court administrative policies may be diverting an inordinate number of petitions for summonses to counseling, and respectfully recommends that the court review its policy to ensure that the remedy the law creates not be vitiated by undue reluctance to employ it." Conference Committee Report No. 29-80 (33-80).

Act 82, Session Laws 1981, substituted "the abused person" for "such person" in the last sentence of subsection (1) for purposes of clarity.

Act 248, Session Laws 1983, amended this section and repealed '709-907. Two of the changes made in this section were intended to encourage more immediate police action in spouse abuse cases: the removal of the requirement that "substantial" physical harm to a spouse occur before police can act and the granting of civil immunity to police who act in good faith when arresting persons for spouse abuse. Along with other changes, these changes were felt to "greatly assist in dealing with spouse abuse." The section was also amended to substitute sex-neutral terms for gender-based language. Senate Standing Committee Report No. 793.

Act 143, Session Laws 1985, amended the spouse abuse law to:

  1. require police to prepare a written report if there are reasonable grounds to believe that abuse exists;
  2. increase the "cooling off" period to twelve hours;
  3. require the arrest of the abuser who refuses to leave the premises when ordered by police or who returns before the "cooling off" period expires;
  4. mandate a minimum 48-hour jail term and counseling and treatment of a convicted abuser; and
  5. extend coverage of the law to protect family or household members from abuse.

These changes are intended to effectively address and combat family violence and its effect on the community. Senate Conference Committee Report No. 6, House Conference Committee Report No. 15.

Act 244, Session Laws 1986, required police to issue written citations to abusive persons ordered to leave the premises of a family or household for a cooling off period. The written citation would accomplish a number of purposes. First, it informs the abusive person of the conditions of the cooling off period. Second, the citation helps insure that the cooling off period is observed. Third, responding police may use the citation as an efficient means of transmitting information to police on subsequent shifts who are resummoned to the same household where the abuse occurred. Finally, the citation eases prosecution of the abusive person since it records the exact facts of the alleged abuse and provides proof that the defendant was notified of the conditions of the cooling off period. House Standing Committee Report No. 518-86, Senate Standing Committee Report No. 940-86.

Act 360, Session Laws 1987, changed the time period before which a person convicted under this section may apply for an order to expunge their records, from one year to five years. The legislature found that the five year period would cover a crucial period in which reabuse is frequent. The legislature stated a five year period would provide a more realistic time period in which a person may demonstrate that expungement is warranted. Senate Standing Committee Report Nos. 879 and 1126.

Act 290, Session Laws 1992, amended this section by providing that for the first offense of the abuse of a household member the person shall serve a minimum jail sentence of forty-eight hours, and, for subsequent offenses occurring within one year of the previous offense, the person shall be termed a "repeat offender" and serve a minimum jail sentence of thirty days. Conference Committee Report No. 122.

Act 182, Session Laws 1994, amended this section to provide for a twenty-four hour cooling off period and to extend the cooling off period until the first day following a weekend or legal holiday. Conference Committee Report No. 50.

Act 116, Session Laws 1995, deleted the repeal date of the amendment to this section made by Act 182, Session Laws 1994, which provided for a twenty-four hour cooling off period. The legislature found that the cooling off period imposed by the police in certain circumstances was very successful in preventing further domestic violence; the cooling off period created a "safe" period during which abuse victims might seek refuge in a shelter or use other safety options. Making the twenty-four hour cooling off period a permanent requirement would allow the police to continue to use the cooling off period to prevent domestic abuse. House Standing Committee Report No. 1566.

Act 321, Session Laws 1997, amended this section by deleting subsection (13) to eliminate the possibility of expungement of records relating to a person's arrest, trial, conviction, dismissal, or discharge involving abuse of a family or household member. The legislature found that domestic violence was a serious crime affecting many families in the community, and for which perpetrators must be held accountable. Further, the repetitive and retaliatory nature of domestic violence required accurate and complete documentation of a perpetrator's history for the future safety of the victim and the victim's family. Senate Standing Committee Report No. 1553.

Act 323, Session Laws 1997, amended subsection (4) by prohibiting contact with a victim of domestic violence, regardless of location, during the "cooling off" period. The Act prohibited the perpetrator of domestic violence from "initiating" contact with the victim so that a violation of subsection (4) was avoided in the event that the victim had reason to contact the perpetrator. The legislature found that the provisions regarding the "cooling off" orders issued by police have had a significant impact in denying domestic violence perpetrators access to their victims. However, its success has been limited in part by the fact that the protection extends only to the premises and not to the victims themselves or to other locations that might be important to the victims, such as their place of employment. The legislature believed that extending the temporary protective legal shield to victims, regardless of their location, would remedy the problem. House Standing Committee Report No. 1481.

Act 383, Session Laws 1997, amended this section by amending the definition of "family or household member" to include reciprocal beneficiaries and former reciprocal beneficiaries. The amendment establishes the status of reciprocal beneficiaries and provides rights and benefits to those with that status. Among the benefits extended to reciprocal beneficiaries which are substantially equivalent to those extended to spouses is legal standing relating to domestic violence family status. Conference Committee Report No. 2.

Act 172, Session Laws 1998, amended this section by, among other things, adding persons who have a child in common to the definition of "family or household member", changing the term "cooling off period" to "period of separation", and making the third offense of abuse of family or household member within two years of the second conviction a felony. Act 172 also amended the section to require that defendants convicted of abuse of family or household member be immediately incarcerated, clarifying that the amendment did not affect the defendant's right to bail pending appeal pursuant to chapter 804, and that the court, upon a finding of special circumstances, may stay the imposition of the jail term. Additionally, Act 172 deleted "recent" with respect to police issuance of twenty-four hour warnings. Under current law, if a police officer had reasonable grounds to believe that there was recent physical abuse or harm, the officer may order the abuser to leave the premises for a cooling off period of twenty-four hours. The legislature found that police officers responding to a domestic violence complaint had to make quick decisions on whether or not to remove an abuser from a home. The decision was often delayed because an officer had to interpret how "recently" the physical abuse occurred. Deleting the ambiguous term would result in more twenty-four hour warnings, thereby protecting more victims of domestic abuse. Act 172 also substituted the phrase "domestic violence intervention" for "domestic violence treatment or counseling"; the change reflected the current language in the domestic violence community. Conference Committee Report No. 80, House Standing Committee Report No. 578-98.

Law Journals and Reviews
Essay: When Less Is More--Can Reducing Penalties Reduce Household Violence? 19 UH L. Rev. 37.

Case Notes
Term "physical abuse" is not vague or overbroad. 69 H. 620, 753 P.2d 1250.

Refusal to sign the twelve hour warning was not a crime. 71 H. 53, 781 P.2d 1041.

Mutual affray is not a defense. 71 H. 165, 785 P.2d 1320.

Statute is not unconstitutionally vague or overbroad; victim residing in the same dwelling with defendant for fourteen weeks in another person's house was considered a "family or household member." 71 H. 479, 795 P.2d 280.

Not violated by parent who hit child with belt. 72 H. 241, 813 P.2d 1382.

Constitutional right to confrontation violated. 72 H. 469, 822 P.2d 519.

Trial court's imposition of sentence based solely on unsupported finding that "victim lied for the defendant" unconstitutionally punished defendant for an uncharged crime. 72 H. 521, 824 P.2d 837.

Because a person convicted of offense may be imprisoned for up to one year, the court had a duty to inform defendant of defendant's right to trial by jury in order to ensure a knowing and voluntary waiver of that right. 75 H. 118, 857 P.2d 576.

Prosecution not precluded by principles of double jeopardy from re-trying defendant, where testimony constituted substantial evidence supporting trial court's conviction. 75 H. 118, 857 P.2d 576.

Double jeopardy clause of Hawaii constitution barred unlawful imprisonment but not terroristic threatening prosecution of defendant who had been found guilty of abuse under this section. 75 H. 446, 865 P.2d 150.

Absence of any evidence in the record that defendant and complaining witness were family or household members recognized as plain error necessitating reversal of defendant=s conviction. 78 H. 185, 891 P.2d 272.

Requisite state of mind for violation of subsection (1) is intentionally, knowingly, or recklessly; prosecution need only prove recklessness. 81 H. 131, 913 P.2d 57.

Substantial evidence proved defendant consciously disregarded substantial and unjustifiable risk of physically abusing wife by slapping her on side of head. 81 H. 131, 913 P.2d 57.

Police not authorized to order domestic disputants to separate except as specified in this section. 7 H. App. 28, 742 P.2d 388.

Where extended family lives together as a common household, defendant and daughter-in-law were "residing in the same dwelling unit". 9 H. App. 325, 839 P.2d 530.

When family court implicitly entered a deferred acceptance of guilty plea pursuant to '853-1 and conditioned deferral upon defendant=s submitting to counseling according to schedule and not committing any subsequent offenses, family court violated '853-4(2), where defendant was charged with abuse of family and household members. 10 H. App. 148, 861 P.2d 759.

The fact that defendant was a "family or household member" for purposes of this section did not satisfy '571-14(1)=s subject matter jurisdiction factual criteria because a "family or household member" is not by that fact "the child=s parent or guardian or ... any other person having the child=s legal or physical custody". 77 H. 260 (App.), 883 P.2d 682.

In subsection (1), to "physically abuse" someone means to maltreat in such a manner as to cause injury, hurt, or damage to that person's body. 79 H. 413 (App.), 903 P.2d 718.

As defendant's striking of husband did actually cause harm sought to be prevented by this section, no abuse of discretion where trial court holds that infraction not too trivial to warrant the condemnation of conviction under '702-236. 79 H. 419 (App.), 903 P.2d 723.

Insufficient evidence to convict under this section where evidence only showed that victim was injured and defendant's statement of wanting to apologize was not necessarily for the violative conduct. 80 H. 469 (App.), 911 P.2d 104.

Alleged abuse or harm inflicted less than one day earlier was "recent" under this section (1992). 82 H. 381 (App.), 922 P.2d 994.

Complainant's out-of-court statements not hearsay under HRE Rule 801 where offered by State not for their truth, but to show that police had reasonable grounds under this section to issue warning citation which defendant subsequently violated. 82 H. 381 (App.), 922 P.2d 994.

Paragraph (4) not unconstitutionally overbroad as issuance of warning citation must be based on objective facts and circumstances, other than merely a complainant's claim, which would lead a reasonable police officer to believe recent physical abuse was inflicted on family or household member. 82 H. 381 (App.), 922 P.2d 994.

AReasonable grounds" standard in paragraph (4) not unconstitutionally vague where standard is an objective standard requiring a trial court to independently assess facts and circumstances which responding officers had before them in determining to issue warning citations. 82 H. 381 (App.), 922 P.2d 994.

An uncorroborated prior inconsistent statement of a family or household member offered under HRE Rule 613 and HRE Rule 802.1 as substantive evidence of the facts stated therein may be sufficient, if believed, to establish physical abuse and the manner in which such abuse was inflicted in a prosecution for physical abuse of a family or household member under this section. 84 H. 253 (App.), 933 P.2d 90.

Where defendant lived with victim at victim's residence "probably three to four nights a week", defendant and victim were "persons jointly residing or formerly residing in the same dwelling unit". 85 H. 512 (App.), 946 P.2d 620.

[[Chapter 801D, ARights of Victims and Witnesses in Criminal Proceedings@]]

'801D-2
Definitions.

    In this chapter:

    "Crime" means an act or omission committed by an adult or juvenile that would constitute an offense against the person under the Penal Code of this State.

    AHomicide victim" means a person whose death was caused by another person under part II of chapter 707.

    AMajor developments" means arrest or release of the suspect by the police, case deferral by the police, referral to the prosecutor by the police, rejection of the case by the prosecutor, preliminary hearing date, grand jury date, trial and sentencing dates, and the disposition of the case.

    ASurviving immediate family members" means surviving grandparents, parents, siblings, spouse, reciprocal beneficiary, children, and any legal guardian of the homicide victim.

    AVictim" means a person against whom a crime has been committed by either an adult or a juvenile.

    AWitness" means a person whose testimony or knowledge is desired in any proceeding or investigation by a grand jury or in a criminal investigation, action, prosecution, or proceeding.

    [L 1988, c 261, pt of '1; am L 1997, c 383, '71]