2012 Hawaii Revised Statutes
TITLE 37. HAWAII PENAL CODE
709. Offenses Against the Family and Against Incompetents
709-904 Endangering the welfare of a minor in the second degree.

§709-904 Endangering the welfare of a minor in the second degree. (1) Except as provided in section 709-903.5(2), a person commits the offense of endangering the welfare of a minor in the second degree if, having care or custody of a minor, the person:

(a) Recklessly allows another person to inflict serious or substantial bodily injury on the minor; or

(b) Recklessly causes or permits the minor to inject, ingest, inhale, or otherwise introduce into the minor's body any controlled substance listed in sections 329-14, 329-16, 329-18, and 329-20 that has not been prescribed by a physician for the minor, except as permitted under section 329-122. This subsection shall not apply to nursing mothers who may cause the ingestion or introduction of detectable amounts of any controlled substance listed in sections 329-14, 329-16, 329-18, and 329-20 to their minor children through breastfeeding.

(2) A person commits the offense of endangering the welfare of a minor in the second degree if, being a parent, guardian, or other person whether or not charged with the care or custody of a minor, the person knowingly endangers the minor's physical or mental welfare by violating or interfering with any legal duty of care or protection owed such minor.

(3) Endangering the welfare of a minor in the second degree is a misdemeanor. [L 1972, c 9, pt of §1; am L 1974, c 198, §1; am L 1986, c 314, §71; am L 2006, c 230, §45 and c 249, §2; am L 2008, c 81, §2]

COMMENTARY ON §709-904

[The Proposed Draft as well as the Code as adopted had limited this offense to a parent, guardian, or other person charged with the care or custody of the minor. In 1974, this was broadened to include persons who were not charged with the care or custody of the minor. (See Supplemental Commentary on §709-904.) This Commentary is based on the original wording prior to the 1974 amendment.]

This section provides a penal sanction for the violation of a duty of care and protection which the civil law relating to minors places upon parents, guardians, and other persons charged with the care or custody of a minor. In a sense this offense is residual. Specific types of conduct which may endanger the welfare of minors are treated separately in §709-902 (abandonment) and §709-903 (persistent nonsupport). However, prosecutions for abandonment and persistent nonsupport do not depend upon a showing that the abandonment or nonsupport actually endangered the welfare of the child. For example, abandonment of a child in a police station or an orphanage may, if the parent is not suitable and beyond rehabilitation, be in the interest of the child. Yet, under such circumstances, a prosecution for abandonment could be maintained. Similarly, an exceedingly poor parent may refuse to support his child and thereby cause a more wealthy relative to furnish support beyond the means of the parent; even so, the persistent refusal would constitute an offense. Section 709-904 involves violations of legal duties which do in fact endanger the welfare of the child. If a person knowingly endangers the welfare of a minor by violating a legal duty of support or non-desertion, it matters not that the nonsupport was sporadic or that the desertion was not with intent to abandon.

The Model Penal Code commentary, in discussing the section of that Code from which this section is derived, observed that

its significance lies as much in what it does not make criminal as in what it does penalize. Notably, it will not be an offense under this or any other Section of the Code to "contribute to the delinquency" or "corrupt the morals" of a child, although nearly all American jurisdictions now have laws couched in these terms, often incorporated in the juvenile court acts.

Authorities concerned with the welfare of children have disavowed the loosely drawn statutes against contributing to delinquency. Experience has shown that such statutes are almost always invoked in situations specifically dealt with by other Sections of the Code, especially those concerned with sexual offenses. To the extent of the overlap, there is no need for the contributing statute. More important, the existence of this overlapping catch-all has been, and would under this Code continue to be, a means of avoiding legislative judgments, made in other sections dealing with specific offenses on such matters as mens rea, punishability of consensual intercourse, proper grading of offenses, corroboration of complaining witnesses, and adequacy of proof generally. Finally, the contributing legislation embraces such a vast range of behavior as to make it completely meaningless as a criminologic category, treating as one class, for example, a rapist, a dealer who buys stolen junk from a fifteen-year-old boy, a narcotics peddler who lures high school children into drug addiction, and a parent who keeps his child out of schools where flag saluting is required.

The basic error that appears to account for the prevalence of the legislation here disapproved is the assumption that the comprehensive terms in which jurisdiction is commonly conferred upon juvenile courts over "delinquent, dependent or neglected" children are also appropriate to define a criminal offense. It is one thing to give broad scope to an authority to promote the welfare of children, but quite another thing to give a criminal court equivalent latitude in defining crimes for which adults shall be punished. The vagueness of current statutes in this field presents serious constitutional problems in the light of the decision in Musser v. Utah.[1]

The definition of this offense limits its application to cases where the victim is under 18 years of age. This limit is set on the theory that in modern society persons 18 and 19 years of age are not, by virtue of their minority status, especially susceptible to the adverse effects which result from breaches of civil duties relating to the welfare of minors. If the behavior of the parent or guardian presents a serious danger to the minor, another offense, addressed specifically to the danger, can be employed, e.g., assault, reckless endangering, etc.

Previous Hawaii law reflected the standard failure to distinguish the broad jurisdiction of the Family Court[2] from that conduct of adults toward children which ought properly to be regarded as criminal. The governing section provided:

Any parent, or legal guardian, or person having the custody of any minor within the purview of chapter 571 establishing the Family Court, or any other person who knowingly or wilfully encourages, aids, causes, abets, or connives at the acts or does anything that directly produces, promotes, or contributes to the conditions which bring the minor within the purview of chapter 571, or who wilfully neglects to do that which will directly tend to prevent the acts or conditions that bring the minor within the purview of chapter 571, shall be fined not more than $200 or imprisoned not more than one year, or both.[3]

The vagueness and lack of specificity was aggravated by a provision that the above section be construed liberally, i.e., to extend liability.[4]

The Code provides a degree of specificity by requiring that, for liability to attach, the actor must violate a legal duty of care or protection. The scope of the section is limited, necessarily, to those persons (parents, guardian, or others) charged with the care and custody of the minor.

SUPPLEMENTAL COMMENTARY ON §709-904

Act 198, Session Laws 1974, amended this section so as to apply to a parent, guardian, or other person whether or not charged with the custody of a minor and so as to include the interference with, as well as the violation of, any legal duty of care or protection owed to the minor.

In Standing Committee Report No. 130-74 the Senate Judiciary Committee stated:

"It will be possible to prosecute persons who harbor runaway juveniles and who assist them in any illegal activities under the rewording of §709-904.

Your Committee on Judiciary would also like to emphasize that in the approval of this bill, there is no intent on their part to interfere with the practices and beliefs of the Christian Scientist population of the State of Hawaii."

Act 314, Session Laws 1986, provided that a person is criminally liable for recklessly allowing another person to inflict serious or substantial bodily injury on a minor. Persons charged with this offense may defend on the ground that they reasonably believed they would incur serious or substantial bodily injury by acting to prevent the harm to the minor. Conference Committee Report No. 51-86.

Act 230, Session Laws 2006, amended subsection (3) to clarify that endangering the welfare of a minor in the second degree is a misdemeanor.

Act 249, Session Laws 2006, expanded the crime of endangering the welfare of a minor in the second degree to include causing or permitting a minor to ingest methamphetamine. Conference Committee Report No. 84-06.

Act 81, Session Laws 2008, amended subsection (1) to include in the offense causing or permitting a minor to inject, ingest, inhale, or otherwise introduce into the minor's body, any controlled substance listed in schedules I through IV not prescribed by a physician, excluding the medical use of marijuana. Act 81 exempted nursing mothers who may cause the ingestion or introduction of detectable amounts of any controlled substance listed in schedules I through IV to their minor children by breastfeeding. The legislature found that the Act would provide greater protection for the health and safety of the children of Hawaii, and was necessary because of the high risk of injury caused by the ingestion of schedule I, II, III, and IV controlled substances. Conference Committee Report No. 55-08, Senate Standing Committee Report No. 3415.

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§709-904 Commentary:

1. M.P.C., Tentative Draft No. 9, comments at 183-184 (1959). Cf. Musser v. Utah, 333 U.S. 95 (1948). Among the questionable convictions which have resulted from the vagueness of current statutes, the M.P.C. commentary cites: State v. Davis, 58 Ariz. 444, 120 P.2d 808 (1942) (parent contributed to delinquency of a minor by encouraging, on religious grounds, refusal to salute the flag, which led to child's expulsion from school [but cf. Partain v. State, 77 Okla. Crim. 270, 141 P.2d 124 (1943), holding compulsory flag saluting statutes unconstitutional]); State v. Scallon, 201 La. 1026, 10 So.2d 885 (1942) ("accused permitted daughter under 17 to go to a nightclub"); State v. Sobelman, 119 Minn. 232, 271 N.W. 484 (1937) (tavern owner convicted for contributing to the delinquency of 16 year old girl who had been drinking in tavern without owner's knowledge); In re Lewis, 193 Misc. 676, 84 N.Y. Supp. 2d 790 (Children's Ct. 1948) (offense consisted of employing a 15 year old boy "to work in a bowling alley where the boy was able to see money placed in a desk and succumbed to the temptation to steal" it); People v. Lew, 78 Cal. App. 2d 178, 177 P.2d 60 (1947) ("acquittal of statutory rape despite indubitable proof of intercourse; conviction of contributing to delinquency despite clear proof that the girl 'victim' was a prostitute"); and State v. Harris, 105 W. Va. 165, 141 S.E. 637 (1928) (defendant convicted of contributing to delinquency "for taking a fifteen-year-old girl out riding against her father's orders and remaining out until eleven o'clock, although the girl asked for the ride").

2. See H.R.S. §§571-11 through 571-14.

3. H.R.S. §577-8. In an attempt to eliminate outmoded phrases, the Revisor of Statutes changed the language of R.L.H. §330-6 (1955) considerably when the Revised Laws were recodified as the Hawaii Revised Statutes [1968].

4. Id. §577-11 which provides: "Sections 577-8 to 577-11 shall be liberally construed in favor of the State for the purpose of the protection of the child from neglect, or omission of parental duty toward the child by its parents, and further to protect the child from the effects of the improper conduct or acts of any person which may cause, encourage, or contribute to the dependency or delinquency of the child, although the person is in no way related to the child."