2012 Hawaii Revised Statutes
TITLE 37. HAWAII PENAL CODE
702. General Principles of Penal Liability
702-212 When state of mind requirements are inapplicable to violations and to crimes defined by statutes other than this Code.

§702-212 When state of mind requirements are inapplicable to violations and to crimes defined by statutes other than this Code. The state of mind requirements prescribed by sections 702-204 and 702-207 through 702-211 do not apply to:

(1) An offense which constitutes a violation, unless the state of mind requirement involved is included in the definition of the violation or a legislative purpose to impose such a requirement plainly appears; or

(2) A crime defined by statute other than this Code, insofar as a legislative purpose to impose absolute liability for such offense or with respect to any element thereof plainly appears. [L 1972, c 9, pt of §1]

COMMENTARY ON §702-212

This section provides for those instances when the culpability provisions of §§702-204 and 207 through 211 are not applicable.

Subsection (1) provides that the requirements of culpability are not generally applicable to violations. (Violations are the lowest grade of penal offenses and for which conviction can only result, according to §701-107 and Chapter 706 in a fine, forfeiture or other "civil" penalty.) An exception is made in two cases: (1) for violations which by definition require culpable commission; and (2) for violations with respect to which a legislative purpose to impose one or more culpability requirements plainly appears. Subsection (1) applies whether the violation is defined in the Penal Code or in some other Title.

The assumption is that, with respect to violations, if culpable commission is required, the relevant state of mind will be stated in the definition of the violation whether the offense appears in the Penal Code or in some other statute. If the law is silent, the court must make an affirmative determination that the application of state of mind requirements with respect to the violation is within the Legislature's purpose. In the absence of such a determination the liability is absolute or strict.

Subsection (2) provides for an extremely limited situation. The Code takes the general position that absolute or strict liability in the penal law is indefensible in principle if conviction results in the possibility of imprisonment and condemnation. Therefore, within the immediate context of the Penal Code, criminal liability must be based on culpability. However, it is recognized that the scope of the Penal Code is finite. In other codes or Titles penal statutes exist which prima facie impose absolute criminal liability.[1] Subsection (2) allows for the imposition of such criminal liability in the case of crimes defined by statutes other than the Penal Code--when and only when--"a legislative purpose to impose absolute liability for such offense or with respect to any element thereof plainly appears." "That such a purpose should not be discerned lightly by the courts seems very clear."[2] Often regulatory penal statutes are absolute on their face when it is doubtful that absolute criminal liability was intended.[3] The limited recognition which subsection (2) affords absolute criminal liability is more of a limitation than a recognition, and within the context of the Penal Code this limitation is as far as the Code can wisely go in imposing its standards on the spectrum of penal regulations.

Prior Hawaii law recognized absolute criminal liability.[4] The effect of subsection (1) is to withdraw the criminal sanction (imprisonment or its equivalent) when liability is imposed absolutely within the Penal Code. Subsection (2) severely limits the situations which will allow the imposition of absolute criminal liability by statutes outside of the Penal Code.

Case Notes

Legislative purpose to impose absolute liability should not be discerned lightly. 62 H. 102, 612 P.2d 103.

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§702-212 Commentary:

1. See, e.g., H.R.S. §453-14 (reporting knife, bullet and other wounds within twenty-four hours).

2. M.P.C., Tentative Draft No. 4, comments at 145 (1955).

3. Compare H.R.S. §§403-141, 403-142, and 403-147 with H.R.S. §403-146 (relating to the regulation of banks).

4. Territory v. Yamamoto, 39 Haw. 556 (1952) (possession of enemy flag during wartime).