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HAWAII

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

    (a) The person knowingly subjects another person to sexual contact by compulsion or causes another person to have sexual contact with the actor by compulsion;

    (b) The person knowingly exposes the person's genitals to another person under circumstances in which the actor's conduct is likely to alarm the other person or put the other person in fear of bodily injury; or

    (c) The person knowingly trespasses on property for the purpose of subjecting another person to surreptitious surveillance for the sexual gratification of the actor.

(2) Sexual assault in the fourth degree is a misdemeanor.

(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.

Case Notes

No double jeopardy for convictions under this section and 712-1217. 8 H. App. 535, 813 P.2d 335.

Prior law.

The Proposed Draft of this section was cited in State v. Rocker, 52 H. 336, 475 P.2d 684 (1970).

Distinguished from open lewdness statute, 712-1217. 61 H. 62, 597 P.2d 10.

COMMENTARY ON 707-730 TO 734

Act 314, Session Laws 1986, incorporated all of the sexual offenses into five degrees of sexual assault. These new crimes comprise a graduated series of offenses from a class A felony to a petty misdemeanor, providing punishment reflecting the seriousness of the offense committed. As a result of the changes the "voluntary social companion" distinction no longer exists between what was first and second degree rape and sodomy. Conference Committee Report No. 51-86.

Act 214, Session Laws 1991, amended 707-733 by providing that a person commits fourth degree sexual assault if that person knowingly trespasses on property for the purpose of surreptitious surveillance. This will avoid prosecuting innocent passersby and distinguishes this offense from simple trespass. Conference Committee Report No. 44.

Act 214, Session Laws 1991, renamed 707-734 from sexual assault in the fifth degree to indecent exposure which is intended to deal with behavior such as nude sunbathing or streaking, which is likely to be an affront to a substantial part of the community. Senate Committee Report No. 1000.

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707-734 Indecent exposure.

(1) A person commits the offense of indecent exposure if, the person intentionally exposes the person's genitals to a person to whom the person is not married under circumstances in which the actor's conduct is likely to cause affront.

(2) Indecent exposure is a petty misdemeanor.

Case Notes

No double jeopardy for convictions under this section and 712-1217. 8 H. App. 535, 813 P.2d 335.

Prior law.

The Proposed Draft of this section was cited in State v. Rocker, 52 H. 336, 475 P.2d 684 (1970).

Distinguished from open lewdness statute, 712-1217. 61 H. 62, 597 P.2d 10.

COMMENTARY ON 707-730 TO 734

Act 314, Session Laws 1986, incorporated all of the sexual offenses into five degrees of sexual assault. These new crimes comprise a graduated series of offenses from a class A felony to a petty misdemeanor, providing punishment reflecting the seriousness of the offense committed. As a result of the changes the "voluntary social companion" distinction no longer exists between what was first and second degree rape and sodomy. Conference Committee Report No. 51-86.

Act 214, Session Laws 1991, amended 707-733 by providing that a person commits fourth degree sexual assault if that person knowingly trespasses on property for the purpose of surreptitious surveillance. This will avoid prosecuting innocent passersby and distinguishes this offense from simple trespass. Conference Committee Report No. 44.

Act 214, Session Laws 1991, renamed 707-734 from sexual assault in the fifth degree to indecent exposure which is intended to deal with behavior such as nude sunbathing or streaking, which is likely to be an affront to a substantial part of the community. Senate Committee Report No. 1000.

Act 366, Session Laws 1997, amended 707-731 to extend the existing prohibition of sexual penetration of a prisoner by a corrections officer to a general prohibition of sexual penetration of any arrested or detained person by a law enforcement officer. The legislature found that under current law, adult corrections officers are held to a higher standard of conduct in relation to their prisoners than police officers. The legislature further found that existing law recognized that a person in custody was in no position to consent to an act of sexual penetration by those incarcerating them. Thus, the legislature believed that the policy of preventing coercion by correctional officers for sexual favors from inmates and to prevent inmates from using sex to extort favors from correctional officers should be extended to all law enforcement officers. Senate Standing Committee Report No. 767, House Standing Committee Report No. 1217.

Act 379, Session Laws 1997, added 707-733.5, creating a new class A felony offense known as continuous sexual assault of a minor under the age of fourteen years, which provides specific circumstances under which sexual assault of a minor under the age of fourteen years is deemed a continuing offense. The legislature found that public safety demanded immediate action against sex offenders who prey on children by taking advantage of their relationship of trust with respect to the minor. According to statistics, sexual assault against minors is an offense in which an overwhelming majority of minor victims knew their perpetrator. The legislature further found that these types of cases are often difficult to prosecute given that molesters who reside in the same household with children sexually abuse their victim over an extended period of time. The child often has difficulty remembering or identifying the specific dates on which the child was molested and may even repress the memory of events. Senate Standing Committee Report No. 1594, Conference Committee Report No. 28.

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712-1217 Open lewdness. (1) A person commits the offense of open lewdness if in a public place the person does any lewd act which is likely to be observed by others who would be affronted or alarmed.

(2) Open lewdness is a petty misdemeanor. [L 1972, c 9, pt of 1; gen ch 1993]

Cross References

Indecent exposure, see 707-734.

COMMENTARY ON 712-1217

This section penalizes open lewdness which does not amount to a sexual offense under Chapter 707 of this Code, but which "amounts to gross flouting of community standards in respect to sexuality or nudity in public."[1] The section does not apply to cult nudism because of the requirement that the act take place when it is known by the actor that the actor's conduct is likely to cause affront or alarm.

Case Notes

Section cited as example of statutory crime without requirement of intention or knowledge. State v. Marley, 54 H. 450, 460, 509 P.2d 1095 (1973).

Intentional exposure of a person's private parts to public view is a lewd act. 61 H. 62, 597 P.2d 10; 61 H. 68, 597 P.2d 13; 61 H. 70, 597 P.2d 15.

Female breasts are not private parts or genitalia, and exposure thereof under existing circumstances was not a lewd act under statute. 61 H. 68, 597 P.2d 13.

"Public place" construed. 61 H. 187, 600 P.2d 1379.

No double jeopardy for convictions under this section and 707-734. 8 H. App. 535, 813 P.2d 335.

Defendant's act occurred in "public place" as it was likely to be seen by any number of casual observers. 81 H. 99 (App.), 912 P.2d 596.

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712-1217 Commentary:

1. M.P.C., Tentative Draft No. 13, comments at 82 (1961).

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HAWAII STATE PARKS
HAWAII ADMINISTRATIVE RULES
TITLE 13
DEPARTMENT OF LAND AND NATURAL RESOURCES
SUBTITLE 6   STATE PARKS
CHAPTER 146
HAWAII STATE PARK SYSTEM

[Hawaii Administrative Rules - February 26, 1999]

           13-146-38 Swimming; nudity. (a) A person may swim or bathe except in waters and at times where these activities are prohibited in the interest of public health or safety. These waters shall be designated by posting of appropriate signs. No person shall bathe, swim, walk, sunbathe, or remain on the premises in the nude, or take outdoor showers in the nude, except for bathing or changing clothes within enclosed facilities provided for those purposes or for the exposed breast of a nursing mother in the act of breastfeeding an infant.

(b) No person shall use flotation devices within designated swimming areas when prohibited by the board or its authorized representative by the posting of appropriate signs.

(c) No person shall use surfboards and similar devices within the limits of designated swimming beach areas. [Eff 4/16/90; am and comp June 08 1999] (Auth: HRS 184-5) (Imp: HRS 184-5)

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U.S. FEDERAL LAW
Specific to Kaloko-Honokohau National Historical Park

[Code of Federal Regulations] [Title 36, Volume 1] [Revised as of July 1, 2001] From the U.S. Government Printing Office via GPO Access

[CITE: 36CFR7.87] [Page 130]
TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY CHAPTER I
NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR
PART 7 --SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM
Table of Contents
Sec. 7.87 Kaloko-Honokohau National Historical Park.

(a) Is public nudity prohibited at Kaloko-Honokohau National Historical Park?
Yes. Public nudity, including nude bathing, by any person on Federal land or water within the boundaries of Kaloko- Honokohau National Historical Park is prohibited. This section does not apply to a person under 10 years of age.

(b) What is public nudity? Public nudity is a person's failure, when in a public place, to cover with a fully opaque covering that person's genitals, pubic areas, rectal area or female breast below a point immediately above the top of the areola.

(c) What is a public place? A public place is any area of Federal land or water subject to Federal jurisdiction within the boundaries of Kaloko-Honokohau National Historical Park, except the enclosed portions of restrooms or other structures designed for privacy or similar purposes.

[64 FR 19483, Apr. 21, 1999]

 

 


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