2012 Hawaii Revised Statutes
TITLE 37. HAWAII PENAL CODE
702. General Principles of Penal Liability
702-225 Liability for conduct of another; incapacity of defendant; failure to prosecute or convict or immunity of other person.

§702-225 Liability for conduct of another; incapacity of defendant; failure to prosecute or convict or immunity of other person. In any prosecution for an offense in which the liability of the defendant is based on conduct of another person, it is no defense that:

(1) The offense charged, as defined, can be committed only by a particular class of persons, and the defendant, not belonging to such class, is for that reason legally incapable of committing the offense in an individual capacity, unless imposing liability on the defendant is inconsistent with the purpose of the provision establishing the defendant's incapacity; or

(2) The other person has not been prosecuted for or convicted of any offense, or has been convicted of a different offense or degree of offense, based upon the conduct in question; or

(3) The other person has a legal immunity from prosecution based upon the conduct in question. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §702-225

This section deals with certain defenses which will not be allowed in any case in which the liability of the defendant is based on the defendant's accountability for the conduct of another.

Subsection (1) deals with the limited problem posed by a person who cannot commit a particular offense in the person's individual capacity but who is accountable for conduct of another who engages in the prohibited conduct. The Code resolves the problem by providing for liability notwithstanding lack of individual capacity. Thus, for example, a woman cannot commit rape in her individual capacity, but she may nevertheless be guilty of that crime if she assists a man to commit rape upon another woman.

Subsection (2) eliminates the common-law defense based on lack of conviction of the person upon whose conduct the penal liability of the defendant is predicated. The absence of this defense does not, of course, relieve the prosecution of the requirement of proving that the offense was actually committed and the defendant's complicity therein.

Subsection (3) provides that, in the extremely rare case, where the person upon whose conduct the liability of the defendant is predicated has a legal immunity from prosecution, the defendant will not be afforded a defense on that ground.

Hawaii case law has recognized, by way of dictum, the principle in subsection (1).[1] The Supreme Court sidestepped an opportunity to rule on the issue resolved by subsection (2).[3] Subsection (3) is an addition to the law. No case has been found dealing with the effect of immunity in this context. Hawaii, unlike some other states, has not, to date, given its prosecutors statutory power to grant immunity.

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§702-225 Commentary:

1. Re Habeas Corpus, Balucan, 44 Haw. 271, 353 P.2d 631 (1960) ("It of course is true that a female may be convicted as an accomplice to an act which a female is incapable of perpetrating herself.").

2. See Republic v. Ruttmann, 11 Haw. 591 (1898). In Ruttmann, the defendant was charged for a crime on the basis of the defendant's own conduct and on the basis of the conduct of another. The court held that the prior acquittal of the other person was not a defense because the defendant had also been charged on the basis of the defendant's own conduct. The opinion indicates implied acceptance of the common-law position.