§701-102 All offenses defined by statute;
applicability to offenses committed after the effective date. (1) No
behavior constitutes an offense unless it is a crime or violation under this
Code or another statute of this State.
(2) The provisions of this Code govern the
construction of and punishment for any offense set forth herein committed after
the effective date, as well as the construction and application of any defense
to a prosecution for such an offense.
(3) The provisions of chapters 701 through 706
of the Code are applicable to offenses defined by other statutes, unless
otherwise provided by applicable law. [L 1972, c 9, pt of §1; am L 2022, c 43, §5]
COMMENTARY ON §701-102
There are no common-law offenses in Hawaii, although Hawaii
has to some extent adopted the common law of England.
The common law of England, as
ascertained by English and American decisions, is declared to be the common law
of the State of Hawaii in all cases, except as otherwise expressly provided by
the Constitution or laws of the United States, or by the laws of the State, or
fixed by Hawaiian judicial precedent, or established by Hawaiian usage; provided,
that no person shall be subject to criminal proceedings except as provided by
the written laws of the United States or of the State.[1]
In Territory v. Rogers,[2] the court noted in passing that
there are no common-law offenses in Hawaii.
Despite these clear rules, it appears wise to enact
specifically that no behavior is penal unless it is made so by this Code or by
another statute. That all offenses should be adequately proscribed by statute
seems at this point of legal development a dictate of fundamental fairness.
Subsection (2) makes it clear that on the effective date this
Code shall become the penal law of this State, and thereafter shall govern both
the definitions (construction) and punishment of all offenses defined in the
Code, and the defenses to those offenses.
Subsection (3) holds that all of the general provisions (chapters
701 to 706) of the Code are applicable to all offenses defined by other
statutes. The purpose is to bring uniformity to the area of non-Code statutory
offenses. One result of this rule will be to make defenses defined by the Code
generally available. The Code's definitions of state of mind requirements will
also be applicable, as will the general principles of construction, time
limitations, and res judicata provisions.
SUPPLEMENTAL COMMENTARY ON §701-102
Act 43, Session Laws 2022, made conforming amendments to this
section to allow exemptions from chapters 701 to 706 to be established outside
of the Penal Code for offenses defined by other statutes. These conforming
amendments facilitated other amendments made by Act 43 clarifying that a court
is required to impose a sentence for domestic violence intervention, with or
without probation, for violations of restraining orders, orders for protection,
and abuse of family or household members. The legislature found that §586-4 authorizes
a family court to order a violator of a temporary restraining order to undergo
mandatory domestic violence intervention. However, the legislature found that
the Hawaii Supreme Court misinterpreted §586-4(e) by holding that domestic
violence intervention may only be ordered as a condition of probation. The
legislature noted that domestic violence intervention, which includes anger
management and domestic violence treatment, is an important part of addressing
the root causes of domestic violence. Act 43 highlighted the importance of
domestic violence intervention and clarified legislative intent by clearly
mandating domestic violence intervention regardless of whether persons are
sentenced with or without probation for violations of restraining orders,
orders for protection, or abuse of family or household members. Senate
Standing Committee Report No. 3853, House Standing Committee Report No. 777-22,
Senate Standing Committee Report No. 3444.
Case Notes
Criminal statutes must be reasonably certain and definite to
give notice of required conduct. 56 H. 481, 541 P.2d 1020 (1975).
No common-law offenses in this jurisdiction, and the
applicable statute or ordinance itself must provide a penalty. 62 H. 656, 619
P.2d 93 (1980).
No offense of "murder for hire". 3 H. App. 107,
643 P.2d 807 (1982).
__________
§701-102 Commentary:
1. H.R.S. §1-1. (Emphasis added.)
2. 37 Haw. 566 (1947).
Notes of Decisions
Cited in
33
cases (
3 in the last 5 years), 1977–2025 · leading case:
State v. Nesmith, 276 P.3d 617 (Haw. 2012).
State v. Nesmith, 276 P.3d 617 (Haw. 2012).
· cites it 16× “" HRS § 701-102 (1993). [9] The oral argument in this case may be found at http://www.”
State v. Arceo, 928 P.2d 843 (Haw. 1996).
· cites it 8× “" Commentary on HRS § 701-102. See also HRS § 1-1 (1993) ("The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of [Hawai`i] in all cases, .”
State v. Dudoit, 978 P.2d 700 (Haw. 1999).
· cites it 8× “" HRS § 701-102 (1993) provides in relevant part that "[n]o behavior constitutes an offense unless it is a crime or violation under this Code or another statute of this State.”
State v. Auwae, 968 P.2d 1070 (Haw. App. 1998).
· cites it 6× “” In this regard, the HPC “shall govern both the definitions (construction) and punishment of all offenses.”
State v. Agard, 151 P.3d 802 (Haw. 2007).
· cites it 4× “) HRS § 701-102(3) (1993), entitled, “All offenses defined by statute; applicability to offenses committed after the effective date,” states, “The provisions of chapters 701 through 706 of the Code are applicable to offenses defined by other statutes, unless the Code otherwise…”
State v. Paris., 378 P.3d 970 (Haw. 2016).
· cites it 8× “”); commentary on HRS § 701-102 (“There are no common-law offenses in Hawaii.”
Barker v. Young., 528 P.3d 217 (Haw. 2023).
· cites it 2× “Third, implicit in the task of 6 HRS § 701-102(1) (2014) provides, “No behavior constitutes an offense unless it is a crime or violation under this Code or another statute of this State.”
State v. Bayly, 185 P.3d 186 (Haw. 2008).
· cites it 2× “HRS § 701-102(3) (1993), entitled, “All offenses defined by statute; applicability to offenses committed after the effective date,” states, “The provisions of chapters 701 through 706 of the Code are applicable to offenses defined by other statutes, unless the Code otherwise…”
State v. Baker., 463 P.3d 956 (Haw. 2020).
· cites it 2× “HRS § 702-204 (“When the state of mind required to establish an element of an offense is not specified by the law, that element is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly.”
State v. Gabrillo, 877 P.2d 891 (Haw. App. 1994).
· cites it 3× “” Commentary on HRS § 701-102 (1985). 4 Although “Rule 12.”
State v. Cullen, 946 P.2d 955 (Haw. 1997).
· cites it 2× “As mandated by HRS § 701-102 (1993), “the provisions of th[e Hawai'i Penal] Code [ (the HPC) ] govern the construction of .”
State v. Yamamoto, 46 P.3d 1092 (Haw. App. 2002).
· cites it 5× “The latter instruction has no basis in our criminal statutes, and by implying that a person is guilty of kidnapping if he or she intends the mere risk of causing another person serious alarm for his or her personal safety, derogates the culpable state of mind, required for…”
— Haw. Rev. Stat. § 701-102(1) — 7 cases
State v. Arceo, 928 P.2d 843 (Haw. 1996).
“" Commentary on HRS § 701-102. See also HRS § 1-1 (1993) ("The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of [Hawai`i] in all cases, .”
Barker v. Young., 528 P.3d 217 (Haw. 2023).
“Third, implicit in the task of 6 HRS § 701-102(1) (2014) provides, “No behavior constitutes an offense unless it is a crime or violation under this Code or another statute of this State.”
State v. Paris., 378 P.3d 970 (Haw. 2016).
“”); commentary on HRS § 701-102 (“There are no common-law offenses in Hawaii.”
State v. Yamamoto, 46 P.3d 1092 (Haw. App. 2002).
“The latter instruction has no basis in our criminal statutes, and by implying that a person is guilty of kidnapping if he or she intends the mere risk of causing another person serious alarm for his or her personal safety, derogates the culpable state of mind, required for…”
— Haw. Rev. Stat. § 701-102(2) — 4 cases
State v. Nesmith, 276 P.3d 617 (Haw. 2012).
“" HRS § 701-102 (1993). [9] The oral argument in this case may be found at http://www.”
State v. Gabrillo, 877 P.2d 891 (Haw. App. 1994).
“” Commentary on HRS § 701-102 (1985). 4 Although “Rule 12.”
— Haw. Rev. Stat. § 701-102(3) — 9 cases
State v. Nesmith, 276 P.3d 617 (Haw. 2012).
“" HRS § 701-102 (1993). [9] The oral argument in this case may be found at http://www.”
State v. Agard, 151 P.3d 802 (Haw. 2007).
“) HRS § 701-102(3) (1993), entitled, “All offenses defined by statute; applicability to offenses committed after the effective date,” states, “The provisions of chapters 701 through 706 of the Code are applicable to offenses defined by other statutes, unless the Code otherwise…”
State v. Bayly, 185 P.3d 186 (Haw. 2008).
“HRS § 701-102(3) (1993), entitled, “All offenses defined by statute; applicability to offenses committed after the effective date,” states, “The provisions of chapters 701 through 706 of the Code are applicable to offenses defined by other statutes, unless the Code otherwise…”
State v. Baker., 463 P.3d 956 (Haw. 2020).
“HRS § 702-204 (“When the state of mind required to establish an element of an offense is not specified by the law, that element is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly.”
— Haw. Rev. Stat. § 701-102(3)(1993) — 1 case
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