§707-731 Sexual assault in the second
degree. (1) A person commits the offense of sexual assault in the second
degree if the person:
(a) Knowingly subjects another person to an act of
sexual penetration by compulsion;
(b) Knowingly subjects to sexual penetration a
person who is mentally incapacitated or physically helpless;
(c) 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
corrections and rehabilitation and having received notice of this statute;
(iv) By a private correctional facility
operating in the State; 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 corrections and rehabilitation; a person residing
in a private correctional facility operating in the State; a person in custody;
a person who is stopped by a law enforcement officer; or a person who is being
accompanied by a law enforcement officer for official purposes; 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; or
(d) Knowingly subjects to sexual penetration a
person who is at least sixteen years old and the actor is contemporaneously
acting in a professional capacity to instruct, advise, or supervise such a
person; provided that the actor is:
(i) No less than five years older than the
minor; and
(ii) Not legally married to the minor.
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 assault in the second degree is a
class B felony. [L 1986, c 314, pt of §57; am L 1987, c 181, §10; am L 1997, c
366, §1; am L 2002, c 36, §1; am L 2004, c 61, §4; am L 2006, c 230, §33; am L
2009, c 11, §73; am L 2016, c 153, §1; am L 2021, c 22, §2; am L 2022, c 278,
§29]
Case Notes
Because sexual assault in the fourth degree in violation of
§707-733(1)(a) and attempted sexual assault in the fourth degree in violation
of §§705-500 and 707-733(1)(a) are included offenses of charged offense of
attempted sexual assault in the second degree in violation of §§705-500 and
707-731(1)(a), circuit court erred in refusing, over appellant's objection, to
instruct jury with respect to them. 79 H. 46, 897 P.2d 973 (1995).
Evidence sufficient to establish absence of consent and thus
sufficient to establish element of "compulsion". 81 H. 39, 912 P.2d
71 (1996).
State must prove beyond a reasonable doubt that complainant
was mentally defective, mentally incapacitated, or physically helpless and
defendant was aware that complainant was such a person. 81 H. 447 (App.), 918
P.2d 254 (1996).
An imprisoned person's consent to "sexual penetration"
by an employee of a state correctional facility is ineffective and thus is not
a defense to a charge brought under subsection (1)(c). 86 H. 426 (App.), 949
P.2d 1047 (1997).
Subsection (1)(c) not unconstitutionally vague. 86 H. 426
(App.), 949 P.2d 1047 (1997).
Notes of Decisions
Cited in
49
cases (
9 in the last 5 years), 1979–2026 · leading case:
State v. Cardus, 949 P.2d 1047 (Haw. App. 1997).
State v. Cardus, 949 P.2d 1047 (Haw. App. 1997).
· cites it 47× “HRS 707-731 provides, in pertinent part: “(1) A person commits the offense of sexual assault in the second degree if: .”
State v. Buch, 926 P.2d 599 (Haw. 1996).
· cites it 24× “]" HRS § 707-731(1)(a) (1993). [10] In accordance with HRS § 702-205, the elements of one variation of HRS § 707-731(1)(a) include conduct ( i.”
State v. Jones, 29 P.3d 351 (Haw. 2001).
· cites it 8× “" HRS §§ 707-731(1)(a) and 707-733(1)(a). [8] The definition of compulsion includes the "absence of consent.”
State v. Guidry, 96 P.3d 242 (Haw. 2004).
· cites it 8× “HRS 846E-1, classifies as "sexually violent offensefs]”, inter alia, acts defined under HRS § 707-731(1 )(a) and HRS § 707-73 l(l)(b).”
State v. Jackson, 912 P.2d 71 (Haw. 1996).
· cites it 8× “Although Jackson was charged with sexual assault in the first degree under HRS § 707-730(1)(a) and sexual assault in the third degree under HRS § 707-732(1)(e), both of which require proof that the defendant used "strong compulsion," see supra notes 4 and 5, he was ultimately…”
State v. Kalaola, 237 P.3d 1109 (Haw. 2010).
· cites it 4× “The defendant in Jones was convicted of five counts of sexual assault including (1) one count of sexual assault in the second degree, HRS § 707-731(1)(a) (1993); (2) one count of attempted sexual assault in the second degree, *1142 HRS §§ 705-500 (1993) and 707-731(1)(a); (3)…”
State v. Kinnane, 897 P.2d 973 (Haw. 1995).
· cites it 6× “HRS § 707-731 (Supp.1992) provides in relevant part: Sexual assault in the second degree.”
State v. Kelekolio, 849 P.2d 58 (Haw. 1993).
· cites it 3× “2 HRS § 707-731 provides in relevant part: Sexual assault in the second degree.”
State v. Kim, 645 P.2d 1330 (Haw. 1982).
· cites it 3× “Appellant was accused of having sexual intercourse with his thirteen-year-old stepdaughter in violation of HRS § 707-731 (1976). 1 The child complainant was the only witness to the alleged crime which, according to the complainant, took place on July 2 or 3, 1979.”
State v. Jumila, 950 P.2d 1201 (Haw. 1998).
· cites it 4× “…HRS § 707-721; Custodial Interference in the First Degree, HRS § 707-726; Sexual Assault in the Second Degree, HRS § 707-731; Sexual Assault in the Third Degree, HRS § 707-732; Extortion in the First Degree, HRS § 707-765; Extortion in the Second Degree, HRS § 707-766;…”
Foo v. State, 102 P.3d 346 (Haw. 2004).
· cites it 4× “1999) 4 (Counts III and IV), Terroristic Threatening in the Second Degree, HRS § 707-717(1) (1993) 5 (Count V), Sexual Assault in the Second Degree, HRS § 707-731(l)(a) (Supp.2001) 6 (Counts VI and VIII), and Sexual Assault in the Fourth Degree, HRS § 707-733(l)(a) (1993) 7…”
State v. Nicol., 403 P.3d 259 (Haw. 2017).
· cites it 2× “2013), four counts of sexual assault in the second degree in violation of HRS § 707-731(l)(a) (Supp. 2013), and two counts of sexual assault in the fourth degree in violation of HRS § 707-733(l)(a) (Supp, 2013).”
— Haw. Rev. Stat. § 707-731(1) — 2 cases
State v. Guidry, 96 P.3d 242 (Haw. 2004).
“HRS 846E-1, classifies as "sexually violent offensefs]”, inter alia, acts defined under HRS § 707-731(1 )(a) and HRS § 707-73 l(l)(b).”
— Haw. Rev. Stat. § 707-731(1)(a) — 18 cases
State v. Jones, 29 P.3d 351 (Haw. 2001).
“" HRS §§ 707-731(1)(a) and 707-733(1)(a). [8] The definition of compulsion includes the "absence of consent.”
State v. Jackson, 912 P.2d 71 (Haw. 1996).
“Although Jackson was charged with sexual assault in the first degree under HRS § 707-730(1)(a) and sexual assault in the third degree under HRS § 707-732(1)(e), both of which require proof that the defendant used "strong compulsion," see supra notes 4 and 5, he was ultimately…”
State v. Buch, 926 P.2d 599 (Haw. 1996).
“]" HRS § 707-731(1)(a) (1993). [10] In accordance with HRS § 702-205, the elements of one variation of HRS § 707-731(1)(a) include conduct ( i.”
State v. Kalaola, 237 P.3d 1109 (Haw. 2010).
“The defendant in Jones was convicted of five counts of sexual assault including (1) one count of sexual assault in the second degree, HRS § 707-731(1)(a) (1993); (2) one count of attempted sexual assault in the second degree, *1142 HRS §§ 705-500 (1993) and 707-731(1)(a); (3)…”
— Haw. Rev. Stat. § 707-731(1)(b) — 3 cases
State v. Buch, 926 P.2d 599 (Haw. 1996).
“]" HRS § 707-731(1)(a) (1993). [10] In accordance with HRS § 702-205, the elements of one variation of HRS § 707-731(1)(a) include conduct ( i.”
— Haw. Rev. Stat. § 707-731(1)(c) — 1 case
State v. Cardus, 949 P.2d 1047 (Haw. App. 1997).
“HRS 707-731 provides, in pertinent part: “(1) A person commits the offense of sexual assault in the second degree if: .”
— Haw. Rev. Stat. § 707-731(2) — 5 cases
— Haw. Rev. Stat. § 707-731(l)(a) — 12 cases
State v. Jones, 29 P.3d 351 (Haw. 2001).
“" HRS §§ 707-731(1)(a) and 707-733(1)(a). [8] The definition of compulsion includes the "absence of consent.”
State v. Kinnane, 897 P.2d 973 (Haw. 1995).
“HRS § 707-731 (Supp.1992) provides in relevant part: Sexual assault in the second degree.”
State v. Buch, 926 P.2d 599 (Haw. 1996).
“]" HRS § 707-731(1)(a) (1993). [10] In accordance with HRS § 702-205, the elements of one variation of HRS § 707-731(1)(a) include conduct ( i.”
State v. Kalaola, 237 P.3d 1109 (Haw. 2010).
“The defendant in Jones was convicted of five counts of sexual assault including (1) one count of sexual assault in the second degree, HRS § 707-731(1)(a) (1993); (2) one count of attempted sexual assault in the second degree, *1142 HRS §§ 705-500 (1993) and 707-731(1)(a); (3)…”
Foo v. State, 102 P.3d 346 (Haw. 2004).
“1999) 4 (Counts III and IV), Terroristic Threatening in the Second Degree, HRS § 707-717(1) (1993) 5 (Count V), Sexual Assault in the Second Degree, HRS § 707-731(l)(a) (Supp.2001) 6 (Counts VI and VIII), and Sexual Assault in the Fourth Degree, HRS § 707-733(l)(a) (1993) 7…”
— Haw. Rev. Stat. § 707-731(l)(b) — 3 cases
State v. Cardus, 949 P.2d 1047 (Haw. App. 1997).
“HRS 707-731 provides, in pertinent part: “(1) A person commits the offense of sexual assault in the second degree if: .”
State v. Kelekolio, 849 P.2d 58 (Haw. 1993).
“2 HRS § 707-731 provides in relevant part: Sexual assault in the second degree.”
— Haw. Rev. Stat. § 707-731(l)(c) — 1 case
State v. Cardus, 949 P.2d 1047 (Haw. App. 1997).
“HRS 707-731 provides, in pertinent part: “(1) A person commits the offense of sexual assault in the second degree if: .”
— Haw. Rev. Stat. § 707-731(l)(e) — 1 case
State v. Cardus, 949 P.2d 1047 (Haw. App. 1997).
“HRS 707-731 provides, in pertinent part: “(1) A person commits the offense of sexual assault in the second degree if: .”
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