HI Rev Stat § 707-734 (2021)
2021 Hawaii Revised Statutes|Title 37. Hawaii Penal Code|707. Offenses Against the Person|707-734 Indecent exposure.

  §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] Case Notes  Defendant did not act intentionally under circumstances likely to cause affront by exposing defendant's genitals to a fellow sunbather where, since other sunbather was also nude, there was no logical or rational basis for concluding that defendant intended to cause affront to other sunbather. 94 H. 60, 8 P.3d 1224 (2000).  Indecent exposure, in violation of this section, does not constitute an offense that entails "criminal sexual conduct" and, consequently, persons convicted of indecent exposure are not "sex offenders" for purposes of chapter 846E; thus, defendant was not required to register as a "sex offender" pursuant to chapter 846E. 102 H. 383, 76 P.3d 935 (2003).  No double jeopardy for convictions under this section and §712-1217. 8 H. App. 535, 813 P.2d 335 (1991). COMMENTARY ON § §707-730 TO 707-734  Act 314, Session Laws 1986, incorporated all of the sexual offenses into five degrees of sexual assault. These new crimes comprise a graduated series of offenses from a class A felony to a petty misdemeanor, providing punishment reflecting the seriousness of the offense committed. As a result of the changes the "voluntary social companion" distinction no longer exists between what was first and second degree rape and sodomy. Conference Committee Report No. 51-86.  Act 214, Session Laws 1991, amended §707-733 by providing that a person commits fourth degree sexual assault if that person knowingly trespasses on property for the purpose of surreptitious surveillance. This will avoid prosecuting innocent passersby and distinguishes this offense from simple trespass. Conference Committee Report No. 44.  Act 214, Session Laws 1991, renamed §707-734 from sexual assault in the fifth degree to indecent exposure which is intended to deal with behavior such as nude sunbathing or streaking, which is likely to be an affront to a substantial part of the community. Senate Committee Report No. 1000.  Act 366, Session Laws 1997, amended §707-731 to extend the existing prohibition of sexual penetration of a prisoner by a corrections officer to a general prohibition of sexual penetration of any arrested or detained person by a law enforcement officer. The legislature found that under current law, adult corrections officers are held to a higher standard of conduct in relation to their prisoners than police officers. The legislature further found that existing law recognized that a person in custody was in no position to consent to an act of sexual penetration by those incarcerating them. Thus, the legislature believed that the policy of preventing coercion by correctional officers for sexual favors from inmates and to prevent inmates from using sex to extort favors from correctional officers should be extended to all law enforcement officers. Senate Standing Committee Report No. 767, House Standing Committee Report No. 1217.  Act 379, Session Laws 1997, added §707-733.5, creating a new class A felony offense known as continuous sexual assault of a minor under the age of fourteen years, which provides specific circumstances under which sexual assault of a minor under the age of fourteen years is deemed a continuing offense. The legislature found that public safety demanded immediate action against sex offenders who prey on children by taking advantage of their relationship of trust with respect to the minor. According to statistics, sexual assault against minors is an offense in which an overwhelming majority of minor victims knew their perpetrator. The legislature further found that these types of cases are often difficult to prosecute given that molesters who reside in the same household with children sexually abuse their victim over an extended period of time. The child often has difficulty remembering or identifying the specific dates on which the child was molested and may even repress the memory of events. Senate Standing Committee Report No. 1594, Conference Committee Report No. 28. [Act 60, Session Laws 2006, repealed §707-733.5 and added §707-733.6, which reenacted the provisions defining the crime of continuous sexual assault of a minor under the age of fourteen years, to reverse the effect of State v. Rabago, 103 Haw. 236 (2003). In State v. Rabago, the Hawaii supreme court stated that it was the province of the supreme court, and not the legislature, to ascertain whether, for purposes of §707-733.5, multiple acts of sexual penetration or sexual contact may be deemed a "continuing offense." Act 60, Session Laws 2006, took effect upon the ratification of a constitutional amendment authorizing the legislature to define what behavior constitutes a continuing course of conduct in sexual assault crimes committed against minors under the age of fourteen (SB 2246 (2006); codified at article I, §25 of the state constitution). See also Commentary for Act 60, Session Laws 2006, enacting §707-733.6.]  Act 1, Second Special Session Laws 2001, amended § §707-730 and 707-732 to require, for the offenses of sexual assault in the first degree and sexual assault in the third degree, that the minor be at least fourteen years old but less than sixteen years old, and the defendant be at least five years older than the minor and not married to the minor. The legislature found that, in many cases, minors lacked the capacity to understand the responsibilities and ramifications of engaging in a sexual relationship with adults. Current law allowed adults to enter into consensual sexual relationships with minors as young as fourteen years old without penalty. The legislature believed that these minors were unfairly burdened with the presumption of knowing the consequences of engaging in sexual relations with an adult, and that the Act would protect Hawaii's children from harmful sexual relationships with adults. Conference Committee Report No. 66, Senate Standing Committee Report No. 1394.  Act 36, Session Laws 2002, amended § §707-731 and 707-732 to prohibit private company employees at correctional facilities or in other residential services under the director of public safety from knowingly subjecting imprisoned persons to sexual contact or sexual penetration. The legislature found inmates particularly vulnerable to sexual assaults from employees at correctional facilities. Private employees associated with the prison system were in the same position of authority as state employees over the inmates they supervised.  The legislature found that although current state law prohibited sexual assaults against inmates in Hawaii correctional facilities, no reference was made to correctional facilities operated by private companies. The legislature further found that the law could be construed to exclude acts by employees of private companies working in state correctional facilities. Act 36 addressed this "loophole" in the law by ensuring that sexual offenses committed by any correctional facility employee against inmates were prohibited, regardless of the employer's status as a public or private facility. House Standing Committee Report No. 696-02, Senate Standing Committee Report No. 3162.  Act 62, Session Laws 2003, amended § §707-730 and 707-732 by removing the sunset provision of Act 1, Second Special Session Laws 2001, which raised the age at which a person can consent to sexual contact from fourteen to sixteen years of age in most cases. Act 62 made permanent the provisions that raised the age of consent to sixteen in most cases. House Standing Committee Report No. 568.  Act 10, Session Laws 2004, amended § §707-730 and 707-732 by amending Act 62, Session Laws 2003, to include the amendment to §707-732 by Act 36, Session Laws 2002. Sections 707-730 and 707-732 were amended by Act 1, Second Special Session Laws 2001, subject to repeal and reenactment on June 30, 2003. Act 36, Session Laws 2002, amended the repeal and reenactment provisions of Act 1, Second Special Session Laws 2001, to exempt Act 36's amendment of §707-732 from the repeal and reenactment. Act 62, Session Laws 2003, deleted the repeal and reenactment provision by amending Act 1, Second Special Session Laws 2001, but not Act 36, Session Laws 2002. House Standing Committee Report No. 1015-4.  Act 61, Session Laws 2004, amended § §707-731 and 707-732 by including as a victim of sexual assault in the second degree, a person committed to the director of public safety and knowingly subjected to sexual penetration, and by amending the offense of sexual assault in the third degree to include law enforcement officers who knowingly subject to sexual contact a person confined to a detention facility or in custody. The Act created uniformity between the offenses of sexual assault in the second degree and in the third degree.  Act 61 also corrected an error in §707-732. The purpose of the 2002 amendment to § §707-731 and 707-732 was to include employees of private companies in correctional facilities in sexual offense statutes that prohibit sexual contact and penetration with imprisoned persons or persons confined in a detention facility. However, the 2002 amendment inadvertently excluded state-employed law enforcement officers and only prohibited private company employees from committing the acts. Act 61 corrected the mistake by including state-employed law enforcement officers and clarified language regarding what does and does not constitute an offense. Conference Committee Report No. 35-04, Senate Standing Committee Report No. 3121.  Act 60, Session Laws 2006, added §707-733.6, reenacting provisions that define the behavior that constitutes the crime of continuous sexual assault of a minor under the age of fourteen years and the unanimity required to convict a person of the crime. Act 60, along with the proposed constitutional amendment in Senate Bill 2246, was intended to reverse the effect of State v. Rabago, 103 Haw. 236 (2003). Under the current law, it is difficult to prosecute persons who repeatedly sexually assault young children because of the difficulty the children have in remembering the individual dates on which they were sexually assaulted. Act 60 permitted the conviction of a person of the continuous sexual assault of a child, if each member of the jury was convinced beyond a reasonable doubt that the defendant had sexually assaulted the child the required minimum number of times, even without unanimity as to the individual assaults, thus making it easier to prosecute those who repeatedly sexually assault children. Senate Standing Committee Report No. 3010, House Standing Committee Report No. 150-06.  Act 230, Session Laws 2006, amended §707-730(1) by adding [the offense of knowingly subjecting to sexual penetration another person who is mentally defective and] the offense of date rape as sexual assault in the first degree. House Standing Committee Report No. 665-06.  Act 230, Session Laws 2006, amended §707-731(1) by deleting the offense of knowingly subjecting to sexual penetration another person who is mentally defective as sexual assault in the second degree to conform to the amendment made in §707-730(1) by the Act.  Act 11, Session Laws 2009, amended § §707-730(1), 707-731(1), and 707-732(1), by deleting references to chapter 460, relating to osteopathy, which was repealed by Act 5, Session Laws 2008. Senate Standing Committee Report No. 49.  Act 153, Session Laws 2016, amended §707-731 to include within the offense of sexual assault in the second degree a person who knowingly subjects to sexual penetration a minor at least sixteen years of age if the person is contemporaneously acting in a professional capacity to instruct, advise, or supervise the minor, with certain exceptions. The legislature found that sexual relations between a person who is younger than sixteen years, the age of consent, and a person who is not less than five years older was a crime even if the younger person consents. However, once a minor attains sixteen years of age, consensual sexual activity was not a crime and the minor was not protected from adults who abuse the power of their position to obtain consent. House Standing Committee Report No. 280-16, Senate Standing Committee Report No. 3309.  Act 153, Session Laws 2016, amended §707-733 to include within the offense of sexual assault in the fourth degree a person who knowingly engages in or causes sexual contact with a minor who is at least sixteen years old but less than eighteen years old if the person is contemporaneously acting in a professional capacity to instruct, advise, or supervise the minor, with certain exceptions. The legislature found that sexual relations between a person who is younger than sixteen years, the age of consent, and a person who is not less than five years older was a crime even if the younger person consents. However, once a minor attains sixteen years of age, consensual sexual activity was not a crime and the minor was not protected from adults who abuse the power of their position to obtain consent. House Standing Committee Report No. 280-16, Senate Standing Committee Report No. 3309.  Act 231, Session Laws 2016, amended §707-733(1) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).  Act 22, Session Laws 2021, amended §707-731 to provide that the offense of sexual assault in the second degree includes offenses against a person who is stopped by a law enforcement officer and against a person who is accompanied by a law enforcement officer for official purposes. Act 22 also amended §707-732 to provide that the offense of sexual assault in the third degree includes offenses against a person who is stopped by a law enforcement officer and against a person who is accompanied by a law enforcement officer for official purposes. The legislature found that there was an incident in which a Honolulu police officer was indicted for the offense of sexual assault in the third degree for knowingly subjecting a teenage girl in custody to sexual contact. The indictment was based upon the interpretation that a person being stopped by a police officer for a traffic infraction was in "custody." However, the indictment was dismissed with prejudice because the court determined that the term "custody" did not include a traffic stop, for purposes of the offense. The legislature further found that during a traffic stop, the person stopped by the officer is not free to go without permission of the officer, and that their actions during the traffic stop are constrained by legal requirements that, if violated, can subject the person to legal penalties, including possible criminal prosecution. The legislature additionally found it appropriate and in the public interest to clarify that the offenses of sexual assault in the second degree and sexual assault in the third degree include, and explicitly prohibit, a law enforcement officer from knowingly subjecting to sexual penetration or sexual contact, a person who is being stopped by the officer or accompanied by the officer for official purposes, including during a traffic stop. Senate Standing Committee Report No. 1210.  Act 239, Session Laws 2021, amended §707-730 to provide that a perpetrator commits the offense of sexual assault in the first degree if the perpetrator was negligent in not knowing of the mental defect of the victim. Act 239 also amended §707-732 to provide that a perpetrator commits the offense of sexual assault in the third degree if the perpetrator was negligent in not knowing of the mental defect of the victim. The legislature found that mentally disabled persons need additional protection from sexual predators. Among developmentally disabled adults, as many as 83 per cent of females and 32 per cent of males had been victims of sexual assault. The legislature further found that anywhere from fifteen thousand to nineteen thousand people with developmental disabilities were sexually assaulted each year in the United States. Forty per cent of people with developmental disabilities who were victims of sexual violence would experience ten or more abusive incidents. The legislature additionally found that mentally disabled persons and developmentally disabled persons have limited, if any, capacity to give knowing and willing consent to sexual acts. Senate Standing Committee Report No. 1211, Conference Committee Report No. 6.