Bill Text: HI SB2193 | 2016 | Regular Session | Amended

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Bill Title: Public Safety; Law Enforcement Officers; Custody; Sexual Assault in the Second Degree and Third Degree

Spectrum: Moderate Partisan Bill (Democrat 8-1)

Status: (Engrossed - Dead) 2016-03-22 - Passed Second Reading and referred to the committee(s) on JUD with none voting aye with reservations; none voting no (0) and Representative(s) Kawakami, Kobayashi, Kong, Luke, Pouha, Rhoads excused (6). [SB2193 Detail]

Download: Hawaii-2016-SB2193-Amended.html

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THE SENATE	S.B. NO.	2193
TWENTY-EIGHTH LEGISLATURE, 2016		S.D. 2
STATE OF HAWAII

A BILL FOR AN ACT

 

 

RELATING TO LAW ENFORCEMENT.

 

 

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

 

     SECTION 1.  The legislature finds that there was a recent incident in which a Honolulu police officer was indicted on a third-degree sexual assault charge for knowingly subjecting a teenage girl in custody, as a result of a traffic stop, to sexual contact.  However, the indictment against the officer was dismissed with prejudice due to the court's interpretation of "custody" in the Hawaii Revised Statutes.

     The purpose of this Act is to define "person in custody" as used in the offenses of sexual assault in the second degree and third degree to explicitly prohibit a law enforcement officer from knowingly subjecting a person who is stopped by or under the control of a law enforcement officer for official purposes, including a traffic stop, to sexual penetration or sexual contact, respectively.

     SECTION 2.  Section 707-731, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

     "(1)  A person commits the offense of sexual assault in the second degree if:

     (a)  The person knowingly subjects another person to an act of sexual penetration by compulsion;

     (b)  The person knowingly subjects to sexual penetration another person who is mentally incapacitated or physically helpless; or

     (c)  The person, while employed:

         (i)  In a state correctional facility;

        (ii)  By a private company providing services at a correctional facility;

       (iii)  By a private company providing community-based residential services to persons committed to the director of public safety and having received notice of this [statute;] section;

        (iv)  By a private correctional facility operating in the State of Hawaii; or

         (v)  As a law enforcement officer as defined in section [[]710-1000[]],

          knowingly subjects to sexual penetration an imprisoned person, a person confined to a detention facility, a person committed to the director of public safety, a person residing in a private correctional facility operating in the State of Hawaii, or a person in custody; provided that paragraph (b) and this paragraph shall not be construed to prohibit practitioners licensed under chapter 453 or 455 from performing any act within their respective practices; and further provided that this paragraph shall not be construed to prohibit a law enforcement officer from performing a lawful search pursuant to a warrant or exception to the warrant clause.

     For purposes of this subsection, "person in custody" means a person who is stopped by or under the control of a law enforcement officer for official purposes.  "Person in custody" includes but is not limited to a person who is stopped by a law enforcement officer for a traffic stop or is in the process of providing any identification, license, or registration pursuant to a traffic stop."

     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 knowingly engages in sexual contact with a person who is at least fourteen years old but less than sixteen years old or causes the minor to have sexual contact with the person; provided that:

         (i)  The person is not less than five years older than the minor; and

        (ii)  The person is not legally married to the minor;

     (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;

     (e)  The person, while employed:

         (i)  In a state correctional facility;

        (ii)  By a private company providing services at a correctional facility;

       (iii)  By a private company providing community‑based residential services to persons committed to the director of public safety and having received notice of this [statute;] section;

        (iv)  By a private correctional facility operating in the State of Hawaii; or

         (v)  As a law enforcement officer as defined in section [[]710-1000[]],

          knowingly subjects to sexual contact an imprisoned person, a person confined to a detention facility, a person committed to the director of public safety, a person residing in a private correctional facility operating in the State of Hawaii, or a person in custody, or causes the person to have sexual contact with the actor; or

     (f)  The person knowingly, by strong compulsion, has sexual contact with another person or causes another person to have sexual contact with the actor.

     For purposes of this subsection, "person in custody" means a person who is stopped by or under the control of a law enforcement officer for official purposes.  "Person in custody" includes but is not limited to a person who is stopped by a law enforcement officer for a traffic stop or is in the process of providing any identification, license, or registration pursuant to a traffic stop.

     Paragraphs (b), (c), (d), and (e) shall not be construed to prohibit practitioners licensed under chapter 453 or 455 from performing any act within their respective practices; provided further that paragraph (e)(v) shall not be construed to prohibit a law enforcement officer from performing a lawful search pursuant to a warrant or an exception to the warrant clause."

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

     SECTION 6.  This Act shall take effect upon its approval.

 

 

Report Title:

Public Safety; Law Enforcement Officers; Custody; Sexual Assault in the Second Degree and Third Degree

 

Description:

Defines "person in custody" as used in the offenses of sexual assault in the second degree and third degree to mean a person who is stopped by or under the control of a law enforcement officer for official purposes.  (SD2)

 

 

 

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