2023 Hawaii Revised Statutes
Title 37. Hawaii Penal Code
701. Preliminary Provisions
701-102 All offenses defined by statute; applicability to offenses committed after the effective date. §701-102 Commentary:
§701-102 All offenses defined by statute; applicability to offenses committed after the effective date. (1) No behavior constitutes an offense unless it is a crime or violation under this Code or another statute of this State.
(2) The provisions of this Code govern the construction of and punishment for any offense set forth herein committed after the effective date, as well as the construction and application of any defense to a prosecution for such an offense.
(3) The provisions of chapters 701 through 706 of the Code are applicable to offenses defined by other statutes, unless otherwise provided by applicable law. [L 1972, c 9, pt of §1; am L 2022, c 43, §5]
COMMENTARY ON §701-102
There are no common-law offenses in Hawaii, although Hawaii has to some extent adopted the common law of England.
The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage; provided, that no person shall be subject to criminal proceedings except as provided by the written laws of the United States or of the State.[1]
In Territory v. Rogers,2 the court noted in passing that there are no common-law offenses in Hawaii.
Despite these clear rules, it appears wise to enact specifically that no behavior is penal unless it is made so by this Code or by another statute. That all offenses should be adequately proscribed by statute seems at this point of legal development a dictate of fundamental fairness.
Subsection (2) makes it clear that on the effective date this Code shall become the penal law of this State, and thereafter shall govern both the definitions (construction) and punishment of all offenses defined in the Code, and the defenses to those offenses.
Subsection (3) holds that all of the general provisions (chapters 701 to 706) of the Code are applicable to all offenses defined by other statutes. The purpose is to bring uniformity to the area of non-Code statutory offenses. One result of this rule will be to make defenses defined by the Code generally available. The Code's definitions of state of mind requirements will also be applicable, as will the general principles of construction, time limitations, and res judicata provisions.
SUPPLEMENTAL COMMENTARY ON §701-102
Act 43, Session Laws 2022, made conforming amendments to this section to allow exemptions from chapters 701 to 706 to be established outside of the Penal Code for offenses defined by other statutes. These conforming amendments facilitated other amendments made by Act 43 clarifying that a court is required to impose a sentence for domestic violence intervention, with or without probation, for violations of restraining orders, orders for protection, and abuse of family or household members. The legislature found that §586-4 authorizes a family court to order a violator of a temporary restraining order to undergo mandatory domestic violence intervention. However, the legislature found that the Hawaii Supreme Court misinterpreted §586-4(e) by holding that domestic violence intervention may only be ordered as a condition of probation. The legislature noted that domestic violence intervention, which includes anger management and domestic violence treatment, is an important part of addressing the root causes of domestic violence. Act 43 highlighted the importance of domestic violence intervention and clarified legislative intent by clearly mandating domestic violence intervention regardless of whether persons are sentenced with or without probation for violations of restraining orders, orders for protection, or abuse of family or household members. Senate Standing Committee Report No. 3853, House Standing Committee Report No. 777-22, Senate Standing Committee Report No. 3444.
Case Notes
Criminal statutes must be reasonably certain and definite to give notice of required conduct. 56 H. 481, 541 P.2d 1020 (1975).
No common-law offenses in this jurisdiction, and the applicable statute or ordinance itself must provide a penalty. 62 H. 656, 619 P.2d 93 (1980).
No offense of "murder for hire". 3 H. App. 107, 643 P.2d 807 (1982).
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§701-102 Commentary:
1. H.R.S. §1-1. (Emphasis added.)
2. 37 Haw. 566 (1947).
