2009 Hawaii Code
Volume 14
TITLE 37 - HAWAII PENAL CODE
CHAPTER 709 - OFFENSES AGAINST THE FAMILY AND AGAINST INCOMPETENTS
§709-906 - Abuse of family or household members; penalty.

     §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:

    (a)   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;

    (b)   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;

    (c)   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;

    (d)   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;

    (e)   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

    (f)   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:

    (a)   For the first offense the person shall serve a minimum jail sentence of forty-eight hours; and

    (b)   For a second offense that occurs within one year of the first conviction, 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 a third or any subsequent offense that occurs within two years of a second or subsequent conviction, the offense shall be a class C felony.

     (8)  Where the physical abuse consists of intentionally or knowingly impeding the normal breathing or circulation of the blood of the family or household member by applying pressure on the throat or the neck, abuse of a family or household member is a class C felony.

     (9)  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.

     (10)  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.

     (11)  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.

     (12)  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.

     (13)  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.

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

     (15)  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; am L 2002, c 5, §1; am L 2006, c 230, §46]

 

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.

  Act 5, Session Laws 2002, amended this section to clarify the sentencing provisions in domestic abuse cases to delete overlapping references to first, second, third, and subsequent convictions.  The Hawaii supreme court in State v. Modica, 58 H. 249 (1977), held that a defendant's due process and equal protection rights are violated if the defendant is convicted of a felony, when the same act committed under the same circumstances could also have been punished as a misdemeanor under another statute, and the elements of proof essential to either conviction are exactly the same.  Subsection (5)(b) made it a misdemeanor for second and subsequent offenses of abuse of a family member that occur within one year of the previous offense.  Subsection (7) made it a class C felony for any subsequent offense occurring within two years after a second misdemeanor conviction.  Under those provisions, subsequent offenses after a second offense could be charged either as a felony or misdemeanor.  A potential constitutional problem existed under State v. Modica.  Act 5 remedied the potential defect by limiting misdemeanors to the first and second offense, while making it a class C felony for any third and subsequent offense.   Senate Standing Committee Report No. 2949, House Standing Committee Report No. 540-02.

  Act 230, Session Laws 2006, amended this section by adding strangulation as abuse of a family or household member and making it a class C felony.  House Standing Committee Report No. 665-06.

 

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.

  As §§701-101, 701-102, 701-107, and 701-108, construed together, establish that the term "offense", as employed by the Hawaii Penal Code, refers to the commission of the crime or violation and not to the procedural events that transpire as a result of that commission, the plain meaning of  "offense", as employed in subsection (5), precludes an interpretation equating it with the term "conviction".  90 H. 262, 978 P.2d 700.

  Defendant's second offense was "subsequent" to the first offense within plain meaning of subsection (5)(b) where brief interval separated both offenses.  90 H. 262, 978 P.2d 700.

  In order to prove a prior offense in order to justify an enhanced sentence for a "second" or "subsequent" offense pursuant to subsection (5), the prosecution must adduce evidence of a conviction of the prior offense.  90 H. 262, 978 P.2d 700.

  Subsection (5) does not require that a "second" or  "subsequent" offense occur on a separate day.  90 H. 262, 978 P.2d 700.

  Section not unconstitutional as State has a legitimate interest in protecting the health, safety and welfare of its citizens, enactment of this section to address family violence within the community is "legitimate" in protecting Hawaii's citizens, and as including family and household members within scope of this section may reduce or deter family violence by imposing upon violators greater criminal punishment than criminal assault, it is rationally related to the State's interest in preventing incidents of family violence.  93 H. 63, 996 P.2d 268.

  Under either §701-109(4)(a) or (4)(c), a petty misdemeanor assault under §707-712(2) is not a lesser included offense of family abuse under this section.  93 H. 63, 996 P.2d 268.

  Evidence was of sufficient quality and probative value to support the conclusion that defendant intentionally, knowingly or recklessly maltreated girlfriend where witness heard slapping noises and a "hard thug" and later found girlfriend "shook up, kind of scared and half beaten", and responding officers observed that girlfriend had sustained injuries to her face and right shoulder, and had reported to officer that defendant held her neck against the couch and punched her in the face.  115 H. 503, 168 P.3d 955.

  Defendant's right to have all elements of an offense proven beyond a reasonable doubt was statutorily protected under §701-114 and constitutionally protected under the Hawaii and federal constitutions; as only defendant personally could have waived such fundamental right and such right could not have been waived or stipulated to by defendant's counsel, stipulation by defendant's counsel of the fact that defendant committed defendant's crime within two years of a second or prior conviction of abuse for purposes of the subsection (7) charge violated defendant's due process rights.  116 H. 3, 169 P.3d 955.

  Pursuant to the definition of "element" set forth in §702-205, the prior conviction reference in subsection (7) constitutes an element of the offense of the felony abuse charge.  116 H. 3, 169 P.3d 955.

  Where a defendant has stipulated to the prior conviction element of an offense under subsection (7), the trial court must instruct the jury, inter alia, that the stipulation is evidence only of the prior conviction element, the prior conviction element of the charged offense must be taken as conclusively proven, the jury is not to speculate as to the nature of the prior convictions, and the jury must not consider defendant's stipulation for any other purpose.  116 H. 3, 169 P.3d 955.

  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.

  "Reasonable grounds" standard in subsection (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.

  Subsection (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.

  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.

  Legislature intended that a written warning citation be given to a person prior to person being charged with violating this section; trial court's failure to instruct the jury that the State was required to prove beyond a reasonable doubt that the officer issued a written warning citation to defendant prior to defendant's arrest was therefore prejudicially erroneous.  96 H. 42 (App.), 25 P.3d 817.

  Where there was no substantial evidence that defendant received the written warning citation as required by subsection (4) prior to defendant's arrest for violation of the warning citation, conviction reversed.  96 H. 42 (App.), 25 P.3d 817.

  There was insufficient evidence to show that the police had reasonable grounds to believe that there was physical abuse or harm inflicted by defendant on complainant where complainant testified that there was "pushing and shoving between her and the defendant".  106 H. 381 (App.), 105 P.3d 258.

  Discussed:  474 F.3d 561.

 

 

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