§702-203 Penal liability based on an
omission. Penal liability may not be based on an omission unaccompanied by
action unless:
(1) The omission is expressly made a sufficient basis
for penal liability by the law defining the offense; or
(2) A duty to perform the omitted act is otherwise
imposed by law. [L 1972, c 9, pt of §1]
COMMENTARY ON §702-203
Penal liability based on an omission unaccompanied by action
is fraught with dangers unless it is limited, as this section does, to those
failures to perform a duty imposed by law--civil or penal. A voluntary
omission under such circumstances will not alone suffice to establish penal
liability, other elements will have to be identified and established according
to the definition of, and other laws relating to, the offense charged.
Previous Hawaii law recognized a limitation more severe than
that contained in this section. Liability predicated on omission only resulted
from failing to do what a penal law commanded.[1] Such a limitation does not
seem wise. Few duties of affirmative action are imposed by penal law. It
should be sufficient for penal liability that a defendant, with the requisite
culpability, failed to discharge a duty of affirmative performance imposed by
civil law.
The Code is in accord with decisions in other states. For
example, the owner of premises owes a duty to business invitees to maintain the
premises in a reasonably safe condition. An owner who recklessly failed to
provide adequate fire exits was held guilty of manslaughter when the omission
caused the death of the owner's invitees.[2] Similarly, a parent, under civil
law, owes a duty to provide food and shelter for his or her infant child. The
intentional or reckless omission to perform the duty may result in a conviction
for murder or manslaughter, respectively, if the omission causes the death of
the child.[3]
Case Notes
Section contemplates possibility of penal liability based on
an omission accompanied by, i.e., in combination with, action, as well as an
omission unaccompanied by action. 73 H. 236, 831 P.2d 924 (1992).
Where evidence that child was a victim of battered child
syndrome was relevant to show that child's death was not an accident, but the
result of an intentional, knowing or reckless criminal act, giving rise to a
duty on defendant's part to obtain medical care for child pursuant to §663-1.6,
trial court did not err in admitting expert testimony that child was a victim
of battered child syndrome. 101 H. 332, 68 P.3d 606 (2003).
In describing the elements of an offense based on the
omission to perform a duty imposed by law under paragraph (2), the circuit
court shall indicate in its instructions that the harm was caused "by"
the omission to perform the relevant duty, although the question of whether the
failure to do so constitutes reversible error necessarily depends, in any
particular case, on an evaluation of the instructions as a whole. 77 H. 216
(App.), 883 P.2d 638 (1994).
Where jury could have reasonably found that defendant care
home operator knew of the risks of infection and failed to provide resident
with the care that was within defendant's capabilities, which care would have
prevented the progression of the infection that caused resident's death, and
defendant had a duty to take resident to follow-up appointment with doctor and
consciously disregarded a substantial and unjustifiable risk that failure to
perform this duty would cause resident's death, sufficient evidence to support
jury's finding that State proved manslaughter by omission, including the
requisite state of mind. 104 H. 387 (App.), 90 P.3d 1256 (2004).
__________
§702-203 Commentary:
1. H.R.S. §701-1.
2. Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902
(1944).
3. See Biddle v. Commonwealth, 206 Va. 14, 141 S.E.2d 710
(1965).
Notes of Decisions
Cited in
12
cases (
1 in the last 5 years), 1991–2024 · leading case:
State v. Bermisa, 90 P.3d 1256 (Haw. App. 2004).
State v. Bermisa, 90 P.3d 1256 (Haw. App. 2004).
· cites it 12× “" Hawaii Revised Statutes § 702-203 (1993) provides: § 702-203 Penal liability based on an omission.”
State v. Batson, 831 P.2d 924 (Haw. 1992).
· cites it 4× “In this connection, HRS § 702-203 provides in pertinent part that “[p]enal liability may not be based on an omission unaccompanied by action unless:.”
State v. Robinson, 922 P.2d 358 (Haw. 1996).
· cites it 6× “We have noted that HRS § 702-203, see supra note 3, provides, in relevant part, that “[pjenal liability may not be based on an omission unaccompanied by action unless .”
State v. Martinez, 68 P.3d 606 (Haw. 2003).
· cites it 4× “Specifically, he contends that the prosecution failed to adduce substantial evidence to support the circuit court’s findings: (1) that Natasha was unconscious “since approximately 3:00 [p.”
State v. Edwards, 30 P.3d 238 (Haw. 2001).
· cites it 2× “On December 29, 1997, Defendant was charged with the offense of murder in the second degree of Cedra by causing her death and/or failing to obtain medical treatment for her injuries, see HRS §§ 702-203(3) (1993), 706-656 (Supp.1997), and 707-701.”
State v. Faufata, 66 P.3d 785 (Haw. App. 2003).
· cites it 6× “As noted in HRS § 702-206(3)(e) (1993), “[a] person acts recklessly with respect to a result of his conduct when he consciously disregards a substantial and unjustifiable risk that his conduct will cause such a result.”
State v. Tucker, 861 P.2d 24 (Haw. App. 1993).
· cites it 4× “Under HRS § 702-203 (1985): Penal liability may not be based on an omission unaccompanied by action unless: (1) The omission is expressly made a sufficient basis for penal liability by the law defining the offense; or (2) A duty to perform the omitted act is otherwise imposed by…”
State v. Tucker, 861 P.2d 24 (Haw. App. 1993).
· cites it 4× “Under HRS § 702-203 (1985): Penal liability may not be based on an omission unaccompanied by action unless: (1) The omission is expressly made a sufficient basis for penal liability by the law defining the offense; or (2) A duty to perform the omitted act is otherwise imposed by…”
State v. Perry, 998 P.2d 70 (Haw. App. 2000).
· cites it 4× “2 HRS § 702-203(2) (1993) refers to penal liability based on legal omission of “[a] duty to perform the [charged] omitted act[.”
State v. Cabral, 883 P.2d 638 (Haw. App. 1994).
· cites it 8× “2d 989 ); Commentary to HRS § 702-203 (1985). Manifestly, then, the connection between the resulting harm and the omitted act must be expressly communicated to the jury in the court’s instructions.”
State v. Cabral, 810 P.2d 672 (Haw. App. 1991).
· cites it 2× “At the time of Clifford’s alleged offense, HRS § 707-701 (1985) and § 702-203 (1985) provided, in relevant part, as follows: §707-701 Murder.”
State v. Kanoa, 554 P.3d 564 (Haw. App. 2024).
· cites it 3× “6(a) (2016)7 5 HRS § 702-203 provides: § 702-203 Penal liability based on an omission .”
— Haw. Rev. Stat. § 702-203(2) — 5 cases
State v. Bermisa, 90 P.3d 1256 (Haw. App. 2004).
“" Hawaii Revised Statutes § 702-203 (1993) provides: § 702-203 Penal liability based on an omission.”
State v. Martinez, 68 P.3d 606 (Haw. 2003).
“Specifically, he contends that the prosecution failed to adduce substantial evidence to support the circuit court’s findings: (1) that Natasha was unconscious “since approximately 3:00 [p.”
State v. Robinson, 922 P.2d 358 (Haw. 1996).
“We have noted that HRS § 702-203, see supra note 3, provides, in relevant part, that “[pjenal liability may not be based on an omission unaccompanied by action unless .”
State v. Perry, 998 P.2d 70 (Haw. App. 2000).
“2 HRS § 702-203(2) (1993) refers to penal liability based on legal omission of “[a] duty to perform the [charged] omitted act[.”
State v. Cabral, 883 P.2d 638 (Haw. App. 1994).
“2d 989 ); Commentary to HRS § 702-203 (1985). Manifestly, then, the connection between the resulting harm and the omitted act must be expressly communicated to the jury in the court’s instructions.”
— Haw. Rev. Stat. § 702-203(3) — 1 case
State v. Edwards, 30 P.3d 238 (Haw. 2001).
“On December 29, 1997, Defendant was charged with the offense of murder in the second degree of Cedra by causing her death and/or failing to obtain medical treatment for her injuries, see HRS §§ 702-203(3) (1993), 706-656 (Supp.1997), and 707-701.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.