Hawaii - Indecency with a Juvenile

The Email we received:
The Hawaii legislature sent legislation to the governor, raising the AOC from 14 to 15. However the effective date was changed to June 31, 2001 as a fatal flaw to permit further discussion. Among those opposed to the bill are the office of the prosecuting attorney of Honolulu and the Honolulu Police Department.

STAND. COM. REP. NO.704

Honolulu, Hawaii

, 2001

RE: H.B. No. 236

H.D. 1

Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-First State Legislature

Regular Session of 2001

State of Hawaii

Sir:

Your Committee on Judiciary and Hawaiian Affairs, to which was referred H.B. No. 236 entitled:

"A BILL FOR AN ACT RELATING TO SEXUAL ASSAULT,"

begs leave to report as follows:

The purpose of the bill is to remove the ability of minors who are at least 14 but less than 16 years of age to consent to having sex with an adult who is five years older than the minor where the adult is not married to the minor.

Your Committee received testimony in support of the measure from the Hawaii Family Forum, the Hawaii Catholic Conference, Na Keiki Law Center, Alliance for Traditional Marriages and Values and concerned individuals. Your Committee received testimony in opposition to the measure from the Department of the Prosecution Attorney for the City and County of Honolulu, the Honolulu Police Department, the Office of the Public Defender, the Hawaii Youth Services Network, the Sex Abuse Treatment Center, the Coalition for the Prevention of Sexual Assault, and Advocates to Consumer Rights.

Your Committee finds that there is a genuine question whether raising the age of consent will have any effect on the protection of minors since:

(1) The minor must be willing to cooperate with police and prosecutors by reporting and testifying; and

(2) The willing participation in sexual behavior by the minor is not viewed by the minor as criminal activity, thereby aggravating conflicts within families and magnifying psychological trauma associated with criminal prosecution of a loved one.

In spite of this major policy question as to the effectiveness of changing a minor's behavior by raising the age of consent, your Committee finds that placing the responsibility of correct behavior upon adult sexual partners may have some effect in limiting some types of sexual activity available to minors.

Your Committee amended the bill by:

(1) Changing the effective date to June 31, 2001, as a fatal flaw to ensure continued discussion on the measure; and

(2) Making the language gender neutral.

As affirmed by the record of votes of the members of your Committee on Judiciary and Hawaiian Affairs that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 236, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 236, H.D. 1, and be placed on the calendar for Third Reading.

Respectfully submitted on behalf of the members of the Committee on Judiciary and Hawaiian Affairs,

Then we received this notice:

Legislature Overrides Age-Of-Consent Veto
First Override During Statehood

HONOLULU, 6:47 p.m. HST July 10, 2001 -- For the first time since 1957, the Hawaii state legislature voted Tuesday to override a veto by a governor. State lawmakers held a special session Tuesday morning to vote to override Gov. Ben Cayetano's veto of a bill to raise Hawaii's age-of- consent for sex from 14 to 16.

In the House, 48 members voted in favor to override the veto, while three members were excused. In the Senate, one member voted against the override, while 23 members voted yes and one was excused.

"Parents want this law and that is our role, to represent the people who put us in office," Rep. Paul Whalen, R-Kona-Kau, said.
Lawmakers in the Senate, led by Cal Kawamoto, also unsucessfully attempted to override a second Cayetano veto of a bill to reduce animal quarantine fees. Legislative leaders had earlier promised to limit the special session to just the age-of-consent bill.
Under the state Constitution, the override session had to begin before noon Tuesday -- the 45th day after the veto. The override requires a two-thirds vote in both houses. Cayetano called the override "pure politics." "I challenge any one of them to get on camera and say this is a great bill," he said. House Speaker Calvin Say and Senate President Robert Bunda earlier were reluctant to have an override session because some lawmakers wanted to add other vetoed bills to the list.

2001 LEGISLATURE
Senators Representatives

They said that they now support the override of the age-of-consent bill because of the strong expression of public support.
"He has a right to his opinion," House Vice- Speaker Sylvia Luke said. "However, the Legislature thought this was an important issue and we struck a compromise to involve all the parties involved."
Cayetano vetoed the bill to raise the age of sexual consent primarily because of the 20-year prison term. It was a concern echoed by the city prosecutors office, police and several civil rights groups, including the state's Commission on the Status of Women.
Say and Bunda said that the governor's concerns could be addressed next year, should lawmakers want to do so.
(Source: http://www.thehawaiichannel.com/hon/news/stories/news-86525120010710-110702.html)

Rare override makes history
Cayetano becomes the first governor since statehood to suffer such a defeat
Prosecutors say few are likely to be prosecuted

By voting to override Gov. Ben Cayetano's veto of the age of consent bill, lawmakers said they showed a new spark of independence. It was also seen by legislators as a victory for parents and those who rarely get involved in politics.
Republicans, long in the minority in state politics, saw it as confirmation that they were players in legislative politics, while Democrats lauded their ability to respond to regular people. In opposition to the praise and congratulations was Cayetano, who labeled yesterday's session as an exercise in political correctness. "If there is anything worse than a Republican, it is a Democrat whose sole purpose in office is to be politically correct," Cayetano told reporters after the Legislature adjourned. Cayetano suffered a dual defeat: He was the first governor since statehood to have a bill overridden, and the rejection came at the hands of his own party, the Democrats. The only vote to sustain the veto came in the Senate, from Sen. Les Ihara.

Ihara said that even though he had originally voted for the bill when it passed the Legislature, upon review, he thought the penalties were too harsh, making the penalty for having sex with someone 16 or younger equivalent to the punishment for rape. "I believe the reverse should be true. The crime of consensual sex should have a lesser penalty than the crime of rape," Ihara said. Rep. Ed Case (D, Manoa), usually a strong supporter of Cayetano's, voted against the governor, saying the bill and the governor's actions were both the result of reasoned and informed decisions. The Legislature just made the "better decision," Case said. A player in mobilizing support for the session was Kelly Rosati, executive director of the Hawaii Family Forum.

The nonprofit advocacy group had been trying to raise the legal age of consensual sex from 14 for the past three years, Rosati said. Senate President Robert Bunda had introduced several bills on the issue at Rosati's request. "We had gotten calls asking if we knew the age was 14 and then we got calls from the Aloha Pregnancy Center reporting 14 and 15 year old regularly coming in and the potential father was often an older adult," Rosati said. Rep. Joe Gomes (R, Kailua) said Rosati played a key role in bringing the House and Senate together for yesterday's special session. "She was able to broker a deal to limit the discussion to one bill and one bill only," Gomes said.

As yesterday's session concluded, Rosati watched from the gallery and was introduced from the floor in both the House and Senate. Other legislators, including Bunda, said the Senate was ready to go into special session without Rosati's help, but he acknowledged that she had been a strong lobbyist. "We have heard from the people, they have called us, faxed us, e-mailed us," Bunda said. "The calls have been there from the constituents." Rosati said the campaign was helped by her appearances on radio stations and by bringing together a coalition working through churches and community groups. "My experience in working with legislative leaders in both parties and both chambers is that many were concerned about the public policy and others were responding to the wishes of their constituents. Sen. Sam Slom (R, Hawaii Kai) said Rosati deserves "a great deal of the credit: She was getting people to make calls." "But this is an absolute example of citizens who are committed making a difference and it is a realization that parents have long been cut out of the power," Slom said.
(Source: http://starbulletin.com/2001/07/11/news/story2.html)

Hawaii lawmakers override governor's veto to raise age of sexual consent from 14 to 16

Thursday, July 12, 2001
(07-12) 01:32 PDT HONOLULU (AP) --
The Legislature raised Hawaii's age of sexual consent from 14 to 16, overriding a governor's veto for the first time since Hawaii became a state. The nearly unanimous vote Tuesday ended Hawaii's distinction of having the nation's lowest age of consent.
Democratic Gov. Ben Cayetano accused lawmakers of being "politically correct" to protect their re-election bids. He said the bill was poorly written and would allow some of the toughest penalties in the nation on consensual sex acts involving young people -- up to 20 years in prison. Sen. Les Ihara, who cast the only vote against overriding the governor's veto, said the punishment was the same as for rape. "I believe the punishment does not fit the crime," he said.
The bill exempts married couples and sexual encounters involving a minor between 14 and 16 and a person less than five years older. The law expires in 2003, with a provision for a task force to study the issue of sexual consent and report to lawmakers in 2003. On the Net: Hawaii Legislature: www.capitol.hawaii.gov/
(Source: http://sfgate.com/cgi-bin/article.cgi?file=/n/a/2001/07/12/national0432EDT0459.DTL&nl=fix)
(Source: http://pacific.bizjournals.com/pacific/stories/2001/07/09/daily29.html)

PDF version of the bill: http://www.capitol.hawaii.gov/session2001/gms/GM_hb0236.PDF

Measure Title: RELATING TO SEXUAL ASSAULT.
Report Title: Sexual Assault; Minors
Description: Deletes knowledge of the age of a minor for purposes of sexual penetration and sexual contact with a minor; criminalizes subjecting to sexual penetration and sexual contact a minor who is age 14, if the actor is 19 years of age or older and not married to the minor. Makes statutory language gender neutral. (HB236 CD1)
Source: http://www.capitol.hawaii.gov/session2001/status/HB236.asp

Sexual Assault in the First Degree - Section 707-730 (1) A person commits the offense of sexual assault in the first degree if:

Sexual Assault in the Second Degree - Section 707-731 (1) A person commits the offense of sexual assault in the second degree if:

Sexual Assault in the Third Degree - Section 707-732 (1) A person commits the offense of sexual assault in the third degree if:

Sexual Assault in the Fourth Degree - Section 707-733 (1) A person commits the offense of sexual assault in the fourth degree if:

(3) Whenever a court sentences a defendant for an offense under this section, the court may order the defendant to submit to a pre-sentence mental and medical examination pursuant to section 706-603

Posted on: Saturday, January 27, 2001
Low age of consent results in exploitation
FROM: (http://the.honoluluadvertiser.com/2001/Jan/27/127opinion1.html)

The age of sexual consent in Hawai’i — 14 — is the lowest in the nation. The state Legislature should not fail to raise it
this year.

The chief objection to raising the age of consent has been the difficulty in prosecuting statutory rape cases. Experts say
the girls are often reluctant to testify. That raises the question of whether the right approach to protecting these girls is through extended social services rather than tougher laws. The answer is that more social services are surely needed, but so is a sophisticated age-of-consent law.

The objection to previous legislation is overcome by a refinement that would make it a crime to have sex with a girl under the age of 18 — if the partner is substantially older than the girl. There is no point in prosecuting kids for having sex with
kids. It’s been going on since Romeo and Juliet. But predatory older men preying on young girls presents a serious problem that must be dealt with.

Kelly Rosati, executive director of Hawai’i Family Forum, has written in these pages that in Hawai’i, any man would go to jail for 20 years for so-called consensual sex with a 13-year-old — that’s statutory rape. But your 14-year-old daughter’s 35-year-old soccer coach is entirely within his legal rights having sexual relations with her.

It’s not just soccer coaches. Rosati writes that adult male perpetrators in our community lure girls into the commercial sex industry by first becoming their "boyfriends." These girls end up in strip bars, massage parlors and prostitution. And these girls are fair game under present law. That’s "absurd public policy," says Rosati. We agree. Lawmakers should raise the statutory rape age to 16 when the adult is 20 or older.

07-2000 New Source: U.S. statutory rape laws is published on the Web by the National
Clearinghouse on Child Abuse and Neglect Information. The booklet, which
requires Adobe Acrobat to read, is located at:

http://www.calib.com/nccanch/pubs/99statutes/35-SexualOffenses.PDF

Statutory rape law must be changed
FROM: (http://www.starbulletin.com/2000/03/06/editorial/letters.html)

Hawaii's law concerning statutory rape/age of consent is the worst in the nation. Since 1986, any child 14 years or
older can consent to having sex with anyone of any age. We don't have to be very smart to know that older men
frequently prey on young people.

Our law makes no distinction concerning the age of the perpetrator. The Alan Guttmacher Institute's 1994 report,
"Sex and America's Teenagers," found that six of 10 girls who had sex before age 15 were coerced by males an
average of six years older.

If a child 13 years or younger lies and claims to be 14, the perpetrator has nothing to worry about. Our law
protects him since it requires the perpetrator to "knowingly" have sex with an underage person in order to break
the law. People should contact lawmakers and demand a change. If we don't care, legislators won't care either.
Stanley W. Philbrick

Update 06-23-01 -
2001 Legislative Session
Bill Status

LAW NOT CHANGED: GOVERNOR VETOED BILL.
Confirmation at: (http://www.capitol.hawaii.gov/site1/archives/getstatus2.asp?billno=HB236)
Final Entry:
6/21/01 S Returned from the Governor without approval (Gov. Msg. No. 346).
6/21/01 H Vetoed (Gov. Msg. No. 232).

June 21, 2001
GOVERNOR VETOES BILL RAISING SEX CONSENT AGE
By Kevin Dayton Advertiser Capitol Bureau Chief

Gov. Ben Cayetano has vetoed a bill that would have raised the age at which minors can legally consent to sex in Hawai`i from 14 years old to16. Democratic House leaders today were discussing the possibility of a veto override and the override idea appears to have some influential supporters. House Human Services Committee Chairman Mike Kahikina, D-43rd (Barbers Pt.-Wai`anae-Ma`ili) said he will urge an override, and House Democratic Majority Leader Marcus Oshiro and Vice Speaker Sylvia Luke agreed to support that effort, Kahikina said.

"It's very disappointing that the governor does not support trying to protect young girls from being victimized," Kahikina said. "We've never done that to the governor before, but in this case, we're talking about young children." Kelly Rosati, executive director of the Hawai`i Family Forum, also said she will ask lawmakers to override Cayetano's veto. "I'm very disappointed in the governor's action and we think its an affront to all the parents and concerned citizens who demanded action
this session to protect Hawai`i's minor from adult sexual predators," Rosati said.

If lawmakers were to override Cayetano's veto, that it would be the first veto override in more than 40 years. The age of consent bill, House Bill 236, appears to be a good candidate for an override effort because it was unanimously approved in both the House and the Senate. In cases where 14- and 15-year olds have sex with a person who is at least five years older than the minors, the bill would have allowed the adult offenders to be sentenced to up to 20 years in prison. Cayetano's office had not yet released a statement at press time explaining the reasons for the veto, but he has expressed reservations about the bill in the past. The bill was publicly criticized by some prosecutors including Honolulu Prosecutor Peter Carlisle, but Kahikina said lawmakers were able to answer the prosecutors' concerns in a compromise late in the session.

Kahikina complained that prosecutors indicated to lawmakers late in the session that the bill was acceptable, but then lobbied the governor to convince him to veto the measure. Kahikina said that apparent turnabout by the prosecutors "leaves a bad taste."

Report Title:
Sexual Assault; Minors
Description:
Deletes knowledge of the age of a minor for purposes of sexual penetration and sexual contact with a minor; criminalizes subjecting to sexual
penetration and sexual contact a minor who is age 14, if the actor is 19 years of age or older and not married to the minor. (SD1)

HOUSE OF REPRESENTATIVES H.B. NO. 236
TWENTY-FIRST LEGISLATURE, 2001 H.D. 1
STATE OF HAWAII S.D. 1

A BILL FOR AN ACT
RELATING TO SEXUAL ASSAULT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The purpose of this Act is to raise the age of consent from age fourteen to age fifteen by providing criminal penalties for persons who subject minors under the age of fifteen to sexual contact or penetration. In the interests of protecting children from sexual exploitation from adults, the legislature intends that knowledge of the minor’s age is not an element of the offense, nor is it a defense to the amended offenses provided herein. The legislature intends that persons committing the amended offenses of sexual assault in the second degree and sexual assault in the fourth degree against minors between the ages of fourteen and fifteen be strictly liable regarding knowledge of the victim’s age. The legislature finds this is in concert with its intent for strict liability as to the knowledge of the victim’s age for the current offenses of sexual assault in the first degree and sexual assault in the third degree. In addition, the legislature affirms the Hawaii State Supreme Court's reading of the legislature's intent to provide strict liability for the victim's age as applied to the offenses of sexual assault in the first degree
and sexual assault in the third degree in State v. Buch, 83 Haw. 308 (1996) and declares its intent to provide similar strict liability for the amendments provided herein. SECTION 2. Section 707-730, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of sexual assault in the first degree if:
(a) The person knowingly subjects another person to an act of sexual penetration by strong compulsion;
(b) The person [knowingly] subjects to sexual penetration another person who is less than fourteen years old;
(c) The person subjects to sexual penetration a minor who is fourteen years old; provided that the person who subjects the minor to sexual penetration is nineteen
years of age or older and is not legally married to the minor; provided [this paragraph] further that paragraphs (b) and (c) shall not be construed to prohibit
practitioners licensed under chapter 453, 455, or 460, from performing any act within their respective practices."

SECTION 3. Section 707-732, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:
"(1) A person commits the offense of sexual assault in the third degree if:
(a) The person recklessly subjects another person to an act of sexual penetration by compulsion;
(b) The person [knowingly] subjects to sexual contact another person who is less than fourteen years old or causes such a person to have sexual contact with the
person;
(c) The person subjects to sexual contact a minor who is fourteen years old; provided that the person who subjects the minor to sexual penetration is nineteen
years of age or older and is not legally married to the minor;
[(c)] (d) The person knowingly subjects to sexual contact another person who is mentally defective, mentally incapacitated, or physically helpless, or causes such
a person to have sexual contact with the actor; [or]
[(d)] (e) The person, while employed in a state correctional facility, knowingly subjects to sexual contact an imprisoned person or causes [such] the person to
have sexual contact with the actor; or
[(e)] (f) The person knowingly, by strong compulsion, has sexual contact with another person or causes another person to have sexual contact with the actor;
provided that paragraphs (b), (c), [and] (d), and (e) shall not be construed to prohibit practitioners licensed under chapter 453, 455, or 460, from performing any act within their respective practices."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 5. The prosecuting attorney of each county shall maintain a record of all cases received and prosecuted under sections 707-730(1) and 707-732(1), Hawaii Revised Statutes, between the effective date of this Act and November 30, 2002. The department of the prosecuting attorney of the city and county of Honolulu shall submit its statistics to the legislative reference bureau no later than December 6, 2002, for the purposes of section 6 of this Act. A report from the
prosecuting attorney of each county, containing a record of the above statistics, shall be submitted to the legislature no later than twenty days prior to the convening of the 2003 regular session.

SECTION 6. The legislative reference bureau shall conduct a review of the effectiveness and impact of this Act, based partly on data provided by the Department of the Prosecuting Attorney of the City and County of Honolulu. The legislative reference bureau shall report its findings and recommendations to the legislature no later than twenty days before the convening of the regular session of 2003.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval and shall be repealed on June 30, 2003; provided that sections 707-730(1) and 707-732(1), Hawaii Revised Statutes, are reenacted in the form in which they read on the day before the approval of this Act.
SOURCE: (http://www.capitol.hawaii.gov/session2001/bills/hb236_sd1_.htm)