Bill Text: HI SB269 | 2013 | Regular Session | Introduced

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Bill Title: Capital Punishment; Murder

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2013-01-24 - Re-Referred to JDL, WAM. [SB269 Detail]

Download: Hawaii-2013-SB269-Introduced.html

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THE SENATE	S.B. NO.	269
TWENTY-SEVENTH LEGISLATURE, 2013
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to capital punishment.

 

 

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

 

     SECTION 1.  The legislature finds that there is a need to provide for the imposition of the death penalty to address the most serious offenses that can be committed, namely, the murder of a minor who is less than twelve years old, murder combined with torture or sexual assault, or any multiple murder.  The use of capital punishment in these circumstances is intended both to punish the perpetrator and to deter others from committing these types of crimes.

     The legislature further finds that this Act is in compliance with the United States Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (June 24, 2002), in which the Court ruled that a jury, rather than a judge, must make a finding of aggravating factors when those factors underlie a judge's choice to impose the death penalty rather than a lesser statutory punishment.  The Supreme Court found that Arizona's enumerated aggravating factors operated as the "functional equivalent of an element of a greater offense."  Therefore, the Sixth Amendment to the United States Constitution requires that such aggravating factors be determined by a jury.

     The legislature finds that this Act complies with Ring v. Arizona, which has affected capital punishment statutes in Arizona and other states.  This Act requires that a jury deliberate and recommend to the court whether the defendant should be sentenced to death or to life imprisonment without the possibility of parole.  A recommendation of death requires the unanimous vote of the entire membership of the jury, and must be based on a written finding that: (1) includes a list of any aggravating circumstances, and (2) determines there are insufficient mitigating circumstances to overcome the circumstances of the murder.

     A jury must find that there exists at least one aggravating circumstance that justifies the death penalty, and there must be no mitigating circumstances or insufficient mitigating circumstances considered as a whole to outweigh each aggravating circumstance considered separately.  Notwithstanding the recommendation of the jury, the court may enter a sentence of death only upon the recommendation of the jury, but has full discretion to not issue such a sentence.

     This Act also prohibits a sentence of capital punishment for persons under the age of eighteen years, and for those who, as a result of a physical or mental disease, disorder, or defect, lack the capacity to understand the proceedings against them or to assist in their own defense, for so long as the incapacity endures.  The legislature finds that this Act is necessary for the health, safety, and welfare of all of the people of this State.

     SECTION 2.  Chapter 706, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§706-    Capital punishment.  (1)  This section shall apply only to a defendant who has been convicted of one or more of the following offenses:

(a)    Murder in the second degree under section 707-701.5 in which the victim was under twelve years of age;

(b)    Murder in the second degree under section 707-701.5 in combination with either:

(i)   Sexual assault in the first, second, or third degree, under sections 707-730, 707-731, or 707-732, respectively; or

(ii)  Torture.  As used in this section, "torture" has the same meaning as "torture" as defined in section 711-1100;

         in which the victim was under the domination and control of the defendant during the entire, continuous period of time in which the offenses under clause (i) or (ii) were committed; or

(c)    Murder in the first degree of more than one person in the same or separate incident under section 707-701(1)(a).

     (2)  Upon conviction of a defendant for the offenses specified in subsection (1), the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or to life imprisonment without possibility of parole; provided that no person shall be sentenced to death under this section who:

(a)    Is under the age of eighteen years; or

(b)    As a result of a physical or mental disease, disorder, or defect lacks capacity to understand the proceedings against the person or to assist in the person's own defense, so long as the incapacity endures.

The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable.  If the trial jury has been waived or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury empanelled for that purpose, unless waived by the defendant.  In the proceeding, evidence shall be presented regarding any of the aggravating circumstances listed in subsection (4) and the mitigating circumstances listed in subsection (5), and evidence may be presented as to any other matter that the court deems relevant to the sentence.  Any evidence that the court deems to have probative value may be received; provided that this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State.  The defendant and the State shall be permitted to present arguments for or against the sentence of death.

     (3)  After hearing all of the evidence, the jury shall deliberate and recommend to the court whether the defendant should be sentenced to death or to life imprisonment without the possibility of parole.  A recommendation of death shall require a unanimous vote of the entire membership of the jury and shall be based on a written finding that there are insufficient mitigating circumstances to overcome the circumstances of the sexual assault, murder, or torture, and a listing of any aggravating circumstances.  For a recommendation of death, the jury must find:

(a)    That there exists at least one aggravating circumstance under subsection (4) that justifies the death penalty; and

(b)    That there are no mitigating circumstances, as listed in subsection (5), or there are insufficient mitigating circumstances considered as a whole to outweigh each aggravating circumstance considered separately.

     (4)  In making its recommendation, the jury shall consider the following as aggravating circumstances, if they apply;

(a)    The sexual assault, torture, or murder was committed while the defendant was confined in a correctional facility, regardless of whether that confinement was legal;

(b)    The defendant committed another sexual assault, torture, or murder at the time of the sexual assault, torture, or murder at issue;

(c)    The defendant knowingly created a substantial risk of death to a person other than the victim or the defendant;

(d)    The sexual assault, torture, or murder was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any felony;

(e)    The murder was committed for the defendant's pecuniary or other personal gain or as a murder for hire;

(f)    The defendant has a prior conviction for sexual assault in any degree or murder in any degree;

(g)    The murder was committed for the purpose of preventing a witness from testifying, or a person from providing evidence, or a person from participating in any legal proceedings or official investigation; and

(h)    The murder was committed by the unlawful and malicious use or detonation of any explosive.

     (5)  In making its recommendation, the jury shall consider the following mitigating circumstances, if they apply:

(a)    The defendant has no significant history of prior criminal activity;

(b)    The sexual assault, torture, or murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;

(c)    The defendant acted against the defendant's will, under extreme duress, or under the substantial domination of another person, a finding of which shall eliminate the possible imposition of the death penalty;

(d)    At the time of the sexual assault, torture, or murder, the capacity of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was substantially impaired by something other than the defendant's voluntary and knowing ingestion of intoxicating substances;

(e)    The age of the defendant at the time of the sexual assault, torture, or murder; and

(f)    The defendant was an accomplice in the sexual assault, torture, or murder committed by another person and the defendant's participation was relatively minor, a finding of which shall eliminate the possible imposition of the death penalty.

     (6)  The court may enter a sentence of death only upon the recommendation of the jury but shall have full discretion to not issue such a sentence.  The court shall set forth in writing its findings upon which the sentence of death is based, including the finding required of the jury in subsection (3).  If the court does not make the findings required to impose the death sentence, the court shall impose a sentence of life imprisonment without the possibility of parole.

     (7)  The judgment of conviction and sentence of death shall be subject to automatic review by the supreme court within sixty days after certification by the sentencing court of the entire record unless time is extended by the supreme court for an additional period, not to exceed thirty days, for good cause shown.  The review by the supreme court shall have priority over all other cases before the supreme court and shall be heard in accordance with rules adopted by the supreme court.  The supreme court shall determine whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the finding of a statutory aggravating circumstance, and whether the sentence is disproportionate as compared to other cases of a similar nature.  If the sentence is affirmed, the supreme court's findings shall include a reference to other cases of a similar nature that the court considered, if any, in affirming the sentence.

     (8)  A person sentenced to death under this section shall be executed by the administration of lethal injection at a place and time to be determined by the sentencing court, which may delegate the decision to the director of public safety; provided that the death penalty shall be stayed, if imposed on a pregnant woman, until after the woman has given birth.

     (9)  In the event the death penalty in this section is held to be unconstitutional by the supreme court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death shall cause the person to be brought before the court, and the court shall sentence the person to life imprisonment without possibility of parole.

     (10)  As part of the sentence imposed under this section, the court shall order the director of public safety and the Hawaii paroling authority to prepare an application for the governor to commute a sentence of death to life imprisonment without the possibility of parole.

     (11)  Any deoxyribonucleic acid, or "DNA" samples or evidence that have been collected from:

(a)    The defendant pursuant to a court order; or

(b)    The victim, the scene of the offense, or from any other person or place relevant to any of the offenses in question;

shall be further preserved for evidentiary purposes by the appropriate law enforcement agency to allow the defendant the opportunity to introduce that DNA evidence at any hearing, the purpose of which in whole or in part is to exonerate the defendant from guilt.  The DNA evidence shall be preserved until either the defendant has been exonerated or executed pursuant to this section."

     SECTION 3.  Section 706-656, Hawaii Revised Statutes, is amended to read as follows:

     "§706-656  Terms of imprisonment for first and second degree murder and attempted first and second degree murder.  (1)  [Persons] Except as provided in section 706-  , persons convicted of first degree murder or first degree attempted murder shall be sentenced to life imprisonment without possibility of parole.

     As part of such sentence the court shall order the director of public safety and the Hawaii paroling authority to prepare an application for the governor to commute the sentence to life imprisonment with parole at the end of twenty years of imprisonment; provided that persons who are repeat offenders under section 706-606.5 shall serve at least the applicable mandatory minimum term of imprisonment.

     (2)  Except as provided in section 706-  or 706-657, [pertaining to enhanced sentence for second degree murder,] persons convicted of second degree murder and attempted second degree murder shall be sentenced to life imprisonment with possibility of parole.  The minimum length of imprisonment shall be determined by the Hawaii paroling authority; provided that persons who are repeat offenders under section 706-606.5 shall serve at least the applicable mandatory minimum term of imprisonment.

     If the court imposes a sentence of life imprisonment without possibility of parole pursuant to section 706-657, as part of that sentence, the court shall order the director of public safety and the Hawaii paroling authority to prepare an application for the governor to commute the sentence to life imprisonment with parole at the end of twenty years of imprisonment; provided that persons who are repeat offenders under section 706-606.5 shall serve at least the applicable mandatory minimum term of imprisonment."

     SECTION 4.  Section 706-660.1, Hawaii Revised Statutes, is amended to read as follows:

     "§706-660.1  Sentence of imprisonment for use of a firearm, semiautomatic firearm, or automatic firearm in a felony.  (1) [A] Except as provided in section 706-  , a person convicted of a felony, where the person had a firearm in the person's possession or threatened its use or used the firearm while engaged in the commission of the felony, whether the firearm was loaded or not, and whether operable or not, may in addition to the indeterminate term of imprisonment provided for the grade of offense be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation the length of which shall be as follows:

    (a)   For murder in the second degree and attempted murder in the second degree--up to fifteen years;

    (b)   For a class A felony--up to ten years;

    (c)   For a class B felony--up to five years; and

    (d)   For a class C felony--up to three years.

The sentence of imprisonment for a felony involving the use of a firearm as provided in this subsection shall not be subject to the procedure for determining minimum term of imprisonment prescribed under section 706-669; provided further that a person who is imprisoned in a correctional institution as provided in this subsection shall become subject to the parole procedure as prescribed in section 706-670 only upon the expiration of the term of mandatory imprisonment fixed under paragraph (a), (b), (c), or (d).

     (2)  [A] Except as provided in section 706-  , a person convicted of a second firearm felony offense as provided in subsection (1) where the person had a firearm in the person's possession or threatened its use or used the firearm while engaged in the commission of the felony, whether the firearm was loaded or not, and whether operable or not, shall in addition to the indeterminate term of imprisonment provided for the grade of offense be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation the length of which shall be as follows:

    (a)   For murder in the second degree and attempted murder in the second degree--twenty years;

    (b)   For a class A felony--thirteen years, four months;

    (c)   For a class B felony--six years, eight months; and

    (d)   For a class C felony--three years, four months.

The sentence of imprisonment for a second felony offense involving the use of a firearm as provided in this subsection shall not be subject to the procedure for determining a minimum term of imprisonment prescribed under section 706-669; provided further that a person who is imprisoned in a correctional institution as provided in this subsection shall become subject to the parole procedure as prescribed in section 706-670 only upon expiration of the term of mandatory imprisonment fixed under paragraph (a), (b), (c), or (d).

     (3)  [A] Except as provided in section 706-  , a person convicted of a felony, where the person had a semiautomatic firearm or automatic firearm in the person's possession or used or threatened its use while engaged in the commission of the felony, whether the semiautomatic firearm or automatic firearm was loaded or not, and whether operable or not, shall in addition to the indeterminate term of imprisonment provided for the grade of offense be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation the length of which shall be as follows:

    (a)   For murder in the second degree and attempted murder in the second degree--twenty years;

    (b)   For a class A felony--fifteen years;

    (c)   For a class B felony--ten years; and

    (d)   For a class C felony--five years.

The sentence of imprisonment for a felony involving the use of a semiautomatic firearm or automatic firearm as provided in this subsection shall not be subject to the procedure for determining a minimum term of imprisonment prescribed under section 706-669; provided further that a person who is imprisoned in a correctional institution as provided in this subsection shall become subject to the parole procedure as prescribed in section 706-670 only upon expiration of the term of mandatory imprisonment fixed under paragraph (a), (b), (c), or (d).

     (4)  In this section:

    (a)   "Firearm" has the same meaning defined in section 134-1 except that it does not include "semiautomatic firearm" or "automatic firearm."

    (b)   "Automatic firearm" has the same meaning defined in section 134-1.

    (c)   "Semiautomatic firearm" means any firearm that uses the energy of the explosive in a fixed cartridge to extract a fired cartridge and chamber a fresh cartridge with each single pull of the trigger."

     SECTION 5.  Section 706-660.2, Hawaii Revised Statutes, is amended to read as follows:

     "§706-660.2  Sentence of imprisonment for offenses against children, elder persons, or handicapped persons.  [Notwithstanding] (1) Except as provided in section 706-  , and notwithstanding section 706-669, a person who, in the course of committing or attempting to commit a felony, causes the death or inflicts serious or substantial bodily injury upon a person who is:

    [(1)](a)   Sixty years of age or older;

    [(2)](b)   Blind, a paraplegic, or a quadriplegic; or

    [(3)](c)   Eight years of age or younger;

and such disability is known or reasonably should be known to the defendant, shall, if not subjected to an extended term of imprisonment pursuant to section 706-662, be sentenced to a mandatory minimum term of imprisonment without possibility of parole as [follows:] provided in subsection (2).

     (2) A person who meets the criteria under subsection (1) shall be sentenced as follows:

    [(1)](a)   For murder in the second degree--fifteen years;

    [(2)](b)   For a class A felony--six years, eight months;

    [(3)](c)   For a class B felony--three years, four months;

    [(4)](d)   For a class C felony--one year, eight months."

     SECTION 6.  Section 706-661, Hawaii Revised Statutes, is amended to read as follows:

     "§706-661  Extended terms of imprisonment.  [The] Except as provided in section 706-  , the court may sentence a person who satisfies the criteria for any of the categories set forth in section 706-662 to an extended term of imprisonment, which shall have a maximum length as follows:

     (1)  For murder in the second degree--life without the possibility of parole;

     (2)  For a class A felony--indeterminate life term of imprisonment;

     (3)  For a class B felony--indeterminate twenty-year term of imprisonment; and

     (4)  For a class C felony--indeterminate ten-year term of imprisonment.

When ordering an extended term sentence, the court shall impose the maximum length of imprisonment.  The minimum length of imprisonment for an extended term sentence under paragraphs (2), (3), and (4) shall be determined by the Hawaii paroling authority in accordance with section 706-669."

     SECTION 7.  Section 706-662, Hawaii Revised Statutes, is amended to read as follows:

     "§706-662  Criteria for extended terms of imprisonment.  [A] Except as provided in section 706-  , a defendant who has been convicted of a felony may be subject to an extended term of imprisonment under section 706-661 if it is proven beyond a reasonable doubt that an extended term of imprisonment is necessary for the protection of the public and that the convicted defendant satisfies one or more of the following criteria:

     (1)  The defendant is a persistent offender in that the defendant has previously been convicted of two or more felonies committed at different times when the defendant was eighteen years of age or older;

     (2)  The defendant is a professional criminal in that:

         (a)  The circumstances of the crime show that the defendant has knowingly engaged in criminal activity as a major source of livelihood; or

         (b)  The defendant has substantial income or resources not explained to be derived from a source other than criminal activity;

     (3)  The defendant is a dangerous person in that the defendant has been subjected to a psychiatric or psychological evaluation that documents a significant history of dangerousness to others resulting in criminally violent conduct, and this history makes the defendant a serious danger to others.  Nothing in this section precludes the introduction of victim-related data to establish dangerousness in accord with the Hawaii rules of evidence;

     (4)  The defendant is a multiple offender in that:

         (a)  The defendant is being sentenced for two or more felonies or is already under sentence of imprisonment for any felony; or

         (b)  The maximum terms of imprisonment authorized for each of the defendant's crimes, if made to run consecutively, would equal or exceed in length the maximum of the extended term imposed or would equal or exceed forty years if the extended term imposed is for a class A felony;

     (5)  The defendant is an offender against the elderly, handicapped, or a minor eight years of age or younger in that:

         (a)  The defendant attempts or commits any of the following crimes:  murder, manslaughter, a sexual offense that constitutes a felony under chapter 707, robbery, felonious assault, burglary, or kidnapping; and

         (b)  The defendant, in the course of committing or attempting to commit the crime, inflicts serious or substantial bodily injury upon a person who has the status of being:

              (i)  Sixty years of age or older;

             (ii)  Blind, a paraplegic, or a quadriplegic; or

            (iii)  Eight years of age or younger; and

              the person's status is known or reasonably should be known to the defendant; or

     (6)  The defendant is a hate crime offender in that:

         (a)  The defendant is convicted of a crime under chapter 707, 708, or 711; and

         (b)  The defendant intentionally selected a victim or, in the case of a property crime, the property that was the object of a crime, because of hostility toward the actual or perceived race, religion, disability, ethnicity, national origin, gender identity or expression, or sexual orientation of any person.  For purposes of this subsection, "gender identity or expression" includes a person's actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth."

     SECTION 8.  Section 707-701, Hawaii Revised Statutes, is amended to read as follows:

     "§707-701  Murder in the first degree.  (1)  A person commits the offense of murder in the first degree if the person intentionally or knowingly causes the death of:

    (a)   More than one person in the same or separate incident;

    (b)   A law enforcement officer, judge, or prosecutor arising out of the performance of official duties;

    (c)   A person known by the defendant to be a witness in a criminal prosecution and the killing is related to the person's status as a witness;

    (d)   A person by a hired killer, in which event both the person hired and the person responsible for hiring the killer shall be punished under this section;

    (e)   A person while the defendant was imprisoned;

    (f)   A person from whom the defendant has been restrained, by order of any court, including an ex parte order, from contacting, threatening, or physically abusing pursuant to chapter 586;

    (g)   A person who is being protected by a police officer ordering the defendant to leave the premises of that protected person pursuant to section 709-906(4), during the effective period of that order; or

    (h)   A person known by the defendant to be a witness in a family court proceeding and the killing is related to the person's status as a witness.

     (2)  Murder in the first degree is a felony for which the defendant shall be sentenced [to imprisonment] as provided in section 706-  or 706-656[.] as applicable."

     SECTION 9.  Section 707-701.5, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§707-701.5[]]  Murder in the second degree.  (1)  Except as provided in section 707-701, a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person.

     (2)  Murder in the second degree is a felony for which the defendant shall be sentenced [to imprisonment] as provided in section 706-  , or 706-656[.], as applicable."

     SECTION 10.  Section 707-730, Hawaii Revised Statutes, is amended to read as follows:

     §707-730  Sexual assault in the first degree.  (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 engages in sexual penetration with another person who is less than fourteen years old;

    (c)   The person knowingly engages in sexual penetration with a person who is at least fourteen years old but less than sixteen years old; 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 penetration another person who is mentally defective; or

    (e)   The person knowingly subjects to sexual penetration another person who is mentally incapacitated or physically helpless as a result of the influence of a substance that the actor knowingly caused to be administered to the other person without the other person's consent.

Paragraphs (b) and (c) shall not be construed to prohibit practitioners licensed under chapter 453 or 455 from performing any act within their respective practices.

     (2)  [Sexual] Except as provided in section 706-  , sexual  assault in the first degree is a class A felony."

     SECTION 11.  Section 707-731, Hawaii Revised Statutes, is amended to read as follows:

     "§707-731  Sexual assault in the second degree.  (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;

        (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(13),

          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.

     (2)  [Sexual] Except as provided in section 706-  , sexual  assault in the second degree is a class B felony."

     SECTION 12.  Section 707-732, Hawaii Revised Statutes, is amended to read as follows:

     "§707-732  Sexual assault in the third degree.  (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;

        (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(13),

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.

     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.

     (2)  [Sexual] Except as provided in section 706-  , sexual  assault in the third degree is a class C felony. "

     SECTION 13.  Section 707-733.6, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§707-733.6[]]  Continuous sexual assault of a minor under the age of fourteen years.  (1)  A person commits the offense of continuous sexual assault of a minor under the age of fourteen years if the person:

    (a)   Either resides in the same home with a minor under the age of fourteen years or has recurring access to the minor; and

    (b)   Engages in three or more acts of sexual penetration or sexual contact with the minor over a period of time, while the minor is under the age of fourteen years.

     (2)  To convict under this section, the trier of fact, if a jury, need unanimously agree only that the requisite number of acts have occurred; the jury need not agree on which acts constitute the requisite number.

     (3)  No other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section, unless the other charged offense occurred outside the period of the offense charged under this section, or the other offense is charged in the alternative.  A defendant may be charged with only one count under this section, unless more than one victim is involved, in which case a separate count may be charged for each victim.

     (4)  [Continuous] Except as provided in section 706-  , continuous sexual assault of a minor under the age of fourteen years is a class A felony."

     SECTION 14.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 15.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 16.  This Act shall take effect upon its approval.

 

 

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Capital Punishment; Murder

 

Description:

Provides for a sentence of death or life imprisonment without possibility of parole upon conviction of a defendant for the murder of a minor less than twelve years of age, murder combined with torture or sexual assault, or multiple murders.  Requires separate sentencing proceedings after conviction before a jury.

 

 

 

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