Definitions of key terms used in this chapter

In this chapter, unless a different meaning plainly is required: "Bodily injury" means physical pain, illness, or any impairment of physical condition. "Compulsion" means absence of consent, or a threat, express or implied, that places a person in fear of public humiliation, property damage, or financial loss. "Dangerous instrument" means any firearm, whether loaded or not, and whether operable or not, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury. "Deviate sexual intercourse" means any act of sexual gratification between a person and an animal or a corpse, involving the sex organs of one and the mouth, anus, or sex organs of the other. "Emergency worker" means any: (1) Law enforcement officer, including any police officer, employee of the department of law enforcement conferred with police powers by the director of law enforcement, parole or probation officer, or any other officer of any county, state, federal, or military agency authorized to exercise law enforcement or police powers; (2) Firefighter, emergency medical services personnel, emergency medical technician, ambulance crewmember, or any other emergency response personnel; (3) Member of the Hawaii National Guard on any duty or service done under or in pursuance of an order or call of the governor or the President of the United States or any proper authority; (4) Member of the United States Army, Air Force, Navy, Marine Corps, or Coast Guard on any duty or service performed under or in pursuance of an order or call of the President of the United States or any proper authority; (5) Member of the National Guard from any other state ordered into service by any proper authority; or (6) Person engaged in emergency management functions as authorized by the director of Hawaii emergency management or the administrator or director of the county emergency management agency or as otherwise authorized under chapter 127A. "Labor" means work of economic or financial value. "Married" includes persons legally married, and a male and female living together as husband and wife regardless of their legal status, but does not include spouses living apart. "Mentally defective" means a person suffering from a disease, disorder, or defect which renders the person incapable of appraising the nature of the person's conduct. "Mentally incapacitated" means a person rendered temporarily incapable of appraising or controlling the person's conduct as a result of the influence of a substance administered to the person without the person's consent. "Person" means a human being who has been born and is alive. "Physically helpless" means a person who is unconscious or for any other reason physically unable to communicate unwillingness to an act. "Public highway" shall have the same meaning as in section 264-1. "Relative" means parent, ancestor, brother, sister, uncle, aunt, or legal guardian. "Restrain" means to restrict a person's movement in such a manner as to interfere substantially with the person's liberty: (1) By means of force, threat, or deception; or (2) If the person is under the age of eighteen or incompetent, without the consent of the relative, person, or institution having lawful custody of the person. "Serious bodily injury" means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. "Services" means a relationship between a person and the actor in which the person performs activities under the supervision of or for the benefit of the actor. Prostitution-related and obscenity-related activities as set forth in chapter 712 are forms of "services" under this section. Nothing in this chapter shall be construed to legitimize or legalize prostitution. "Sexual contact" means any touching, other than acts of "sexual penetration", of the sexual or other intimate parts of another, or of the sexual or other intimate parts of the actor by another, whether directly or through the clothing or other material intended to cover the sexual or other intimate parts. "Sexual penetration" means: (1) Vaginal intercourse, anal intercourse, fellatio, deviate sexual intercourse, or any intrusion of any part of a person's body or of any object into the genital or anal opening of another person's body; it occurs upon any penetration, however slight, but emission is not required. As used in this definition, "genital opening" includes the anterior surface of the vulva or labia majora; or (2) Cunnilingus or anilingus, whether or not actual penetration has occurred. For purposes of this chapter, each act of sexual penetration shall constitute a separate offense. "Street" shall have the same meaning as in section 291C-1. "Strong compulsion" means the use of or attempt to use one or more of the following to overcome a person: (1) A threat, express or implied, that places a person in fear of bodily injury to the individual or another person, or in fear that the person or another person will be kidnapped; (2) A dangerous instrument; or (3) Physical force. "Substantial bodily injury" means bodily injury which causes: (1) A major avulsion, laceration, or penetration of the skin; (2) A burn of at least second degree severity; (3) A bone fracture; (4) A serious concussion; or (5) A tearing, rupture, or corrosive damage to the esophagus, viscera, or other internal organs. "Vehicle" has the same meaning as in section 291E-1. "Vulnerable user" means: (1) A pedestrian legally within a street or public highway; (2) A roadway worker actually engaged in work upon a street or public highway or in work upon utility facilities along a street or public highway, or engaged in the provision of emergency services within a street or public highway, including but not limited to: (a) Construction and maintenance workers; and (b) Police, fire, and other emergency responders; or (3) A person legally operating any of the following within the street or public highway: (a) A bicycle; (b) A moped; (c) An electric foot scooter; (d) An electric personal assistive mobility device; or (e) A wheelchair conveyance or other personal mobility device. [L 1972, c 9, pt of §1; am L 1973, c 136, §6; am L 1980, c 223, §1; am L 1981, c 213, §1; am L 1986, c 314, §48; am L 1987, c 181, §7; gen ch 1993; am L 2001, c 30, §1; am L 2004, c 61, §3; am L 2006, c 116, §4 and c 230, §26; am L 2008, c 147, §1; am L 2012, c 21, §1 and c 316, §1; am L 2014, c 111, §15; am L 2015, c 35, §23; am L 2016, c 231, §32; am L 2021, c 174, §9; am L 2022, c 278, §16] COMMENTARY ON §707-700 This section is definitional only and, of course, specifies no offense. A discussion of the definitions in this section, when needed or appropriate, is found in the commentary to the substantive offenses employing the terms defined. SUPPLEMENTAL COMMENTARY ON §707-700 With respect to Item (11), relating to the definition of "married", the Proposed Draft had recommended that "married" should also include "a male and female living together as man and wife regardless of their legal status." The Code as originally adopted in 1972 did not contain that recommended clause. However, by Act 136, Session Laws 1973, the clause was restored. The legislature declared, "the definition of 'married' is amended to conform to the language of the proposed Draft of the Hawaii Penal Code as submitted by the Judicial Council of Hawaii and recognizes the prevalence of many male and female couples living together although not legally married." House Standing Committee Report No. 726. Act 223, Session Laws 1980, amended the definitions of "sexual intercourse" and "forcible compulsion" to make their meanings less restrictive so as to bring more conduct within the scope of sexual offenses. It also deleted the definition of "female." This term was applicable only to the offense of rape, and it became superfluous when the offense was "de-sexed" in 1979. Act 213, Session Laws 1981, sought to clarify the definition of "forcible compulsion." One of the primary changes was to delete the requirement that physical force be such as to "overcome resistance." Act 314, Session Laws 1986, added the definition of "substantial bodily injury" to account for injuries far more serious than bodily injury--which includes any physical pain, illness, or impairment--but do not approximate the risk of death, permanent loss or disfigurement that constitute "serious bodily injury." Act 314 also added the definition of "sexual penetration." That definition was enacted to express the legislature's intent that even though rape and sodomy are renamed as sexual assault offenses, prosecutors may still charge a defendant with multiple counts for each act of penetration. Conference Committee Report No. 51-86. Act 181, Session Laws 1987, broadened the definitions of "sexual contact" by including touching of the sexual or other intimate parts through the clothing or other material intended to cover the sexual or intimate parts. Senate Standing Committee Report No. 1130. Act 30, Session Laws 2001, amended the definition of "substantial bodily injury" by deleting the requirement that qualifying second degree burns be caused by chemical, electrical, friction, or scalding means. The legislature found that the definitions of many crimes include a requirement of "substantial bodily injury" and that defining that term too restrictively excludes from successful prosecution many otherwise criminal actions. The legislature supported the categorization of every second degree burn, regardless of origin, as a "substantial bodily injury." The legislature found that burns that are substantial bodily injuries are determined by the severity and degree, not by the nature or cause of the injuries. Senate Standing Committee Report No. 829, House Standing Committee Report No. 1220. Act 61, Session Laws 2004, amended the definitions of "sexual contact" and "sexual penetration." The legislature found that clarification of the definition of "sexual penetration" was necessary because of a recent Hawaii supreme court decision, in which the court held that the definition of "sexual penetration" required proof of actual penetration for the acts of cunnilingus or anilingus. A previous decision held that the act of cunnilingus is an act of "sexual penetration" under the statutory definition of "sexual penetration," irrespective of whether there was proof of actual penetration. The legislature found that it is usually difficult for many sexual assault victims to know whether penetration, however slight, occurred during the act of cunnilingus. Also, the failure to provide such a clarification would reduce many sexual assaults involving acts of cunnilingus or anilingus on children under the age of consent, from a class A felony to a class C felony. The legislature believed that the definition of sexual penetration should include the acts of cunnilingus or anilingus, regardless of whether there was actual penetration. Senate Standing Committee Report No. 3121. Act 116, Session Laws 2006, defined "emergency worker." Act 116 penalized the commission of certain crimes during a time of a civil defense emergency proclaimed by the governor or during a period of disaster relief. The legislature found that Hurricanes Katrina and Rita created situations that highlighted the prevalence of opportunistic crimes that can occur during these times. When resources are needed to restore law and order, emergency response aid to victims may be hampered or delayed, leaving victims at an increased risk of bodily injury or death. Stronger measures to control law and order may deter looting and other crimes. Senate Standing Committee Report No. 3302, House Standing Committee Report No. 757-06, Conference Committee Report No. 64-06. Act 230, Session Laws 2006, defined the term "genital opening" as used in the definition of "sexual penetration." House Standing Committee Report No. 665-06. Act 230, Session Laws 2006, made a technical nonsubstantive amendment to the definition of "mentally incapacitated." Act 147, Session Laws 2008, amended this section by defining "labor" and "services." Act 147 made it a crime of kidnapping to intentionally or knowingly restrain another person with the intent to unlawfully obtain the labor or services of the person, regardless of whether a debt collection is involved. Conference Committee Report No. 38-08. Act 21, Session Laws 2012, amended this section by adding the definition of "vehicle" for the purpose of modifying the scope of offenses relating to negligent injury to broaden the offenses' application to include injuries caused by more types of vehicles to increase public safety. The legislature found that a person was guilty of a negligent injury offense if that person caused serious or substantial bodily injury to another person while operating a motor vehicle. Act 21 would allow this negligent injury offense to also include the negligent operation of a moped or vessel. Adding a broader definition for vehicles under the Hawaii penal code would hold vehicle operators more accountable for their actions, especially when their actions involve the safety of others. Senate Standing Committee Report No. 2449, House Standing Committee Report No. 1101-12. Act 316, Session Laws 2012, amended this section by adding definitions for "public highway," "street," and "vulnerable user." Act 111, Session Laws 2014, amended the definition of "emergency worker." Act 111 updated and recodified Hawaii's emergency management laws to conform with nationwide emergency management practices by, among other things, establishing a Hawaii emergency management agency in the state department of defense with the functions and authority currently held by the state civil defense agency; establishing the power and authority of the director of Hawaii emergency management, who will be the adjutant general, and providing the director with the functions and authority currently held by the director of civil defense; establishing county emergency management agencies, each to be under the respective county mayor's direction, with the functions and authority currently held by the local organizations for civil defense; and repealing the chapters on disaster relief [chapter 127] and the civil defense [and] emergency act [chapter 128], which were determined to be obsolete with the creation of the Hawaii emergency management agency. Conference Committee Report No. 129-14. Act 35, Session Laws 2015, made technical nonsubstantive amendments to the definition of "vulnerable user." Act 231, Session Laws 2016, amended the definition of "sexual contact" to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015). Act 174, Session Laws 2021, amended the definition of "vulnerable user" to include a person legally operating an electric foot scooter within a street or public highway. The legislature found that shared micromobility vehicles, including bicycles, e-bikes, and electric foot scooters, were more frequently becoming part of multimodal transportation systems. Although electric foot scooters were becoming increasingly common, they were not adequately regulated under existing law. The legislature further found that electric foot scooters are vehicles but not bicycles and that applying bicycle regulations to electric foot scooters would not be optimal. Accordingly, Act 174 established a framework for the regulation of electric foot scooters by the State and counties. Senate Standing Committee Report No. 1612. Act 278, Session Laws 2022, amended the definition of "emergency worker" to replace the reference to "public safety officer" with "employee of the department of law enforcement conferred with police powers by the director of law enforcement" to reflect the provisions in Act 278 that: (1) reestablished the department of public safety as an independent department of corrections and rehabilitation to administer the corrections, rehabilitation, and reentry of the inmate population; and (2) established a department of law enforcement to consolidate and administer certain criminal law enforcement and investigative functions of the department of public safety, department of transportation, department of the attorney general, and office of homeland security. The legislature found that the goals and functions of corrections and law enforcement are distinct, and separating the functions of the department of public safety into two departments would advance these distinct goals and objectives while allowing the corrections arm to more fully integrate strategies for rehabilitation. The legislature further found that reorganizing certain state law enforcement functions into a single entity with consistent training opportunities would allow for the efficient use of resources in administering correctional programs and improve decision making, promote accountability, streamline communication, decrease costs, reduce duplication of efforts, provide uniform training and standards, and promote uniform standards of law enforcement services. House Standing Committee Report No. 200-22, Senate Standing Committee Report No. 3292.