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Statutes: Hawaii

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Statutes: Hawaii

Updated: 
November 13, 2018

These statutes are current through the end of the 2018 Second Special Session. To find additional statutes, please go to the Hawaii State Legislature’s website.

Division 1. Government

Updated: 
November 13, 2018

Title 10. Public Safety and Internal Security

Updated: 
November 13, 2018

Chapter 134. Firearms, Ammunition and Dangerous Weapons

Updated: 
November 13, 2018

Part I. General Regulations

Updated: 
November 13, 2018

134-1. Definitions

Updated: 
November 19, 2018

As used in this chapter, unless the context indicates otherwise:

“Acquire” means gain ownership of.

“Antique pistol or revolver” means any pistol or revolver manufactured before 1899 and any replica thereof if it either is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition or is designed or redesigned to use rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.

“Assault pistol” means a semiautomatic pistol that accepts a detachable magazine and has two or more of the following characteristics:

(1) An ammunition magazine that attaches to the pistol outside of the pistol grip;

(2) A threaded barrel capable of accepting a barrel extender, flash suppressor, forward hand grip, or silencer;

(3) A shroud that is attached to or partially or completely encircles the barrel and permits the shooter to hold the firearm with the second hand without being burned;

(4) A manufactured weight of fifty ounces or more when the pistol is unloaded;

(5) A centerfire pistol with an overall length of twelve inches or more; or

(6) It is a semiautomatic version of an automatic firearm;

but does not include a firearm with a barrel sixteen or more inches in length, an antique pistol as defined in this section, or a curio or relic as those terms are used in 18 United States Code section 921(a)(13) or 27 Code of Federal Regulations section 478.11.

“Automatic firearm” means any firearm that shoots, is designed to shoot, or can be readily modified to shoot automatically more than one shot, without a manual reloading, by a single function of the trigger. This term shall also include the frame or receiver of any such firearm, any part designed and intended solely and exclusively, or any combination of parts designed and intended, for use in converting a firearm into an automatic firearm, and any combination of parts from which an automatic firearm can be assembled if the parts are in the possession or under the control of a single person.

“Chief of police” means the chief of police of the counties of Hawaii, Maui, Kauai, or the city and county of Honolulu.

“Crime of violence” means any offense, as defined in title 37, that involves injury or threat of injury to the person of another, including sexual assault in the fourth degree under section 707-733 and harassment by stalking under section 711-1106.5.

“Electric gun” means any portable device that is electrically operated to project a missile or electromotive force. It does not include any electric livestock prod used in animal husbandry and any automatic external defibrillator used in emergency medical situations.

“Firearm” means any weapon, for which the operating force is an explosive, including but not limited to pistols, revolvers, rifles, shotguns, automatic firearms, noxious gas projectors, mortars, bombs, and cannon.

“Firearm loaded with ammunition” and “loaded firearm” means a firearm with ammunition present within the firing chamber, revolving cylinder, or within a magazine which is inserted in a firearm.

“Fugitive from justice” means any person (1) who has fled from any state, territory, the District of Columbia, or possession of the United States, to avoid prosecution for a felony or to avoid giving testimony in any criminal proceeding or (2) who has fled from any country other than the United States and is avoiding lawful extradition back to that country.

“Pistol” or “revolver” means any firearm of any shape with a barrel less than sixteen inches in length and capable of discharging loaded ammunition or any noxious gas.

“Public highway” shall have the same meaning as defined in section 264-1(a).

“Semiautomatic” means the mode of operation by which a firearm 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 a trigger.

134-2. Permits to acquire

Updated: 
November 19, 2018

(a) No person shall acquire the ownership of a firearm, whether usable or unusable, serviceable or unserviceable, modern or antique, registered under prior law or by a prior owner or unregistered, either by purchase, gift, inheritance, bequest, or in any other manner, whether procured in the State or imported by mail, express, freight, or otherwise, until the person has first procured from the chief of police of the county of the person’s place of business or, if there is no place of business, the person’s residence or, if there is neither place of business nor residence, the person’s place of sojourn, a permit to acquire the ownership of a firearm as prescribed in this section. When title to any firearm is acquired by inheritance or bequest, the foregoing permit shall be obtained before taking possession of a firearm; provided that upon presentation of a copy of the death certificate of the owner making the bequest, any heir or legatee may transfer the inherited or bequested firearm directly to a dealer licensed under section 134-31 or licensed by the United States Department of Justice without complying with the requirements of this section.

(b) The permit application form shall include the applicant’s name, address, sex, height, weight, date of birth, place of birth, country of citizenship, social security number, alien or admission number, and information regarding the applicant’s mental health history and shall require the fingerprinting and photographing of the applicant by the police department of the county of registration; provided that where fingerprints and a photograph are already on file with the department, these may be waived.

(c) An applicant for a permit shall sign a waiver at the time of application, allowing the chief of police of the county issuing the permit access to any records that have a bearing on the mental health of the applicant. The permit application form and the waiver form shall be prescribed by the attorney general and shall be uniform throughout the State.

(d) The chief of police of the respective counties may issue permits to acquire firearms to citizens of the United States of the age of twenty-one years or more, or duly accredited official representatives of foreign nations, or duly commissioned law enforcement officers of the State who are aliens; provided that any law enforcement officer who is the owner of a firearm and who is an alien shall transfer ownership of the firearm within forty-eight hours after termination of employment from a law enforcement agency. The chief of police of each county may issue permits to aliens of the age of eighteen years or more for use of rifles and shotguns for a period not exceeding sixty days, upon a showing that the alien has first procured a hunting license under chapter 183D, part II. The chief of police of each county may issue permits to aliens of the age of twenty-one years or more for use of firearms for a period not exceeding six months, upon a showing that the alien is in training for a specific organized sport-shooting contest to be held within the permit period. The attorney general shall adopt rules, pursuant to chapter 91, as to what constitutes sufficient evidence that an alien is in training for a sport-shooting contest.Notwithstanding any law to the contrary and upon joint application, the chief of police may issue permits to acquire firearms jointly to spouses who otherwise qualify to obtain permits under this section.

(e) The permit application form shall be signed by the applicant and by the issuing authority. One copy of the permit shall be retained by the issuing authority as a permanent official record. Except for sales to dealers licensed under section 134-31, or dealers licensed by the United States Department of Justice, or law enforcement officers, or where a license is granted under section 134-9, or where any firearm is registered pursuant to section 134-3(a), no permit shall be issued to an applicant earlier than fourteen calendar days after the date of the application; provided that a permit shall be issued or the application denied before the twentieth day from the date of application. Permits issued to acquire any pistol or revolver shall be void unless used within ten days after the date of issue. Permits to acquire a pistol or revolver shall require a separate application and permit for each transaction. Permits issued to acquire any rifle or shotgun shall entitle the permittee to make subsequent purchases of rifles or shotguns for a period of one year from the date of issue without a separate application and permit for each acquisition, subject to the disqualifications under section 134-7 and subject to revocation under section 134-13; provided that if a permittee is arrested for committing a felony or any crime of violence or for the illegal sale of any drug, the permit shall be impounded and shall be surrendered to the issuing authority. The issuing authority shall perform an inquiry on an applicant by using the International Justice and Public Safety Network, including the United States Immigration and Customs Enforcement query, the National Crime Information Center, and the National Instant Criminal Background Check System, pursuant to section 846-2.7 before any determination to issue a permit or to deny an application is made.

(f) In all cases where a pistol or revolver is acquired from another person within the State, the permit shall be signed in ink by the person to whom title to the pistol or revolver is transferred and shall be delivered to the person who is transferring title to the firearm, who shall verify that the person to whom the firearm is to be transferred is the person named in the permit and enter on the permit in the space provided the following information: name of the person to whom the title to the firearm was transferred; names of the manufacturer and importer; model; type of action; caliber or gauge; and serial number, as applicable. The person who is transferring title to the firearm shall sign the permit in ink and cause the permit to be delivered or sent by registered mail to the issuing authority within forty-eight hours after transferring the firearm.

In all cases where receipt of a firearm is had by mail, express, freight, or otherwise from sources without the State, the person to whom the permit has been issued shall make the prescribed entries on the permit, sign the permit in ink, and cause the permit to be delivered or sent by registered mail to the issuing authority within forty-eight hours after taking possession of the firearm.

In all cases where a rifle or shotgun is acquired from another person within the State, the person who is transferring title to the rifle or shotgun shall submit, within forty-eight hours after transferring the firearm, to the authority that issued the permit to acquire, the following information, in writing: name of the person who transferred the firearm, name of the person to whom the title to the firearm was transferred; names of the manufacturer and importer; model; type of action; caliber or gauge; and serial number, as applicable.

(g) Effective July 1, 1995, no person shall be issued a permit under this section for the acquisition of a pistol or revolver unless the person, at any time prior to the issuance of the permit, has completed:

(1) An approved hunter education course as authorized under section 183D-28;

(2) A firearms safety or training course or class available to the general public offered by a law enforcement agency of the State or of any county;

(3) A firearms safety or training course offered to law enforcement officers, security guards, investigators, deputy sheriffs, or any division or subdivision of law enforcement or security enforcement by a state or county law enforcement agency; or

(4) A firearms training or safety course or class conducted by a state certified or National Rifle Association certified firearms instructor or a certified military firearms instructor that provides, at a minimum, a total of at least two hours of firing training at a firing range and a total of at least four hours of classroom instruction, which may include a video, that focuses on:

(A) The safe use, handling, and storage of firearms and firearm safety in the home; and

(B) Education on the firearm laws of the State.

An affidavit signed by the certified firearms instructor who conducted or taught the course, providing the name, address, and phone number of the instructor and attesting to the successful completion of the course by the applicant shall constitute evidence of certified successful completion under this paragraph.

(h) No person shall sell, give, lend, or deliver into the possession of another any firearm except in accordance with this chapter.

(i) No fee shall be charged for permits, or applications for permits, under this section, except for a single fee chargeable by and payable to the issuing county, for individuals applying for their first permit, in an amount equal to the fee charged by the Hawaii criminal justice data center pursuant to section 846-2.7. In the case of a joint application, the fee provided for in this section may be charged to each person to whom no previous permit has been issued.

(j) In all cases where a permit application under this section is denied because an applicant is prohibited from owning, possessing, receiving, or controlling firearms under federal or state law, the chief of police of the applicable county shall, within ten business days from the date of denial, send written notice of the denial including the identity of the applicant and the reasons for the denial to the:

(1) Prosecuting attorney in the county where the permit was denied;

(2) Attorney general;

(3) United States Attorney for the District of Hawaii; and

(4) Director of public safety.

If the permit to acquire was denied because the applicant is subject to an order described in section 134-7(f), the chief of police shall, within three business days from the date of denial, send written notice of the denial to the court that issued the order.

When the director of public safety receives notice that an applicant has been denied a permit because of a prior criminal conviction, the director of public safety shall determine whether the applicant is currently serving a term of probation or parole, and if the applicant is serving such a term, send written notice of the denial to the applicant’s probation or parole officer.

134-7. Ownership or possession prohibited, when; penalty

Updated: 
November 13, 2018

(a) No person who is a fugitive from justice or is a person prohibited from possessing firearms or ammunition under federal law shall own, possess, or control any firearm or ammunition therefor.

(b) No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor.

(c) No person who:

(1) Is or has been under treatment or counseling for addiction to, abuse of, or dependence upon any dangerous, harmful, or detrimental drug, intoxicating compound as defined in section 712-1240, or intoxicating liquor;

(2) Has been acquitted of a crime on the grounds of mental disease, disorder, or defect pursuant to section 704-411; or

(3) Is or has been diagnosed as having a significant behavioral, emotional, or mental disorders as defined by the most current diagnostic manual of the American Psychiatric Association or for treatment for organic brain syndromes;

shall own, possess, or control any firearm or ammunition therefor, unless the person has been medically documented to be no longer adversely affected by the addiction, abuse, dependence, mental disease, disorder, or defect.

(d) No person who is less than twenty-five years old and has been adjudicated by the family court to have committed a felony, two or more crimes of violence, or an illegal sale of any drug shall own, possess or control any firearm or ammunition therefor.

(e) No minor who:

(1) Is or has been under treatment for addiction to any dangerous, harmful, or detrimental drug, intoxicating compound as defined in section 712-1240, or intoxicating liquor;

(2) Is a fugitive from justice; or

(3) Has been determined not to have been responsible for a criminal act or has been committed to any institution on account of a mental disease, disorder, or defect;

shall own, possess, or control any firearm or ammunition therefor, unless the minor has been medically documented to be no longer adversely affected by the addiction, mental disease, disorder, or defect.

For the purposes of enforcing this section, and notwithstanding section 571-84 or any other law to the contrary, any agency within the State shall make its records relating to family court adjudications available to law enforcement officials.

(f) No person who has been restrained pursuant to an order of any court, including an ex parte order as provided in this subsection, from contacting, threatening, or physically abusing any person, shall possess, control, or transfer ownership of any firearm or ammunition therefor, so long as the protective order, restraining order, or any extension is in effect, unless the order, for good cause shown, specifically permits the possession of a firearm and ammunition. The restraining order or order of protection shall specifically include a statement that possession, control, or transfer of ownership of a firearm or ammunition by the person named in the order is prohibited. Such person shall relinquish possession and control of any firearm and ammunition owned by that person to the police department of the appropriate county for safekeeping for the duration of the order or extension thereof. In the case of an ex parte order, the affidavit or statement under oath that forms the basis for the order shall contain a statement of the facts that support a finding that the person to be restrained owns, intends to obtain or to transfer ownership of, or possesses a firearm, and that the firearm may be used to threaten, injure, or abuse any person. The ex parte order shall be effective upon service pursuant to section 586-6. At the time of service of a restraining order involving firearms and ammunition issued by any court, the police officer may take custody of any and all firearms and ammunition in plain sight, those discovered pursuant to a consensual search, and those firearms surrendered by the person restrained. If the person restrained is the registered owner of a firearm and knows the location of the firearm, but refuses to surrender the firearm or refuses to disclose the location of the firearm, the person restrained shall be guilty of a misdemeanor. In any case, when a police officer is unable to locate the firearms and ammunition either registered under this chapter or known to the person granted protection by the court, the police officer shall apply to the court for a search warrant pursuant to chapter 803 for the limited purpose of seizing the firearm and ammunition.

For the purposes of this subsection, good cause shall not be based solely upon the consideration that the person subject to restraint pursuant to an order of any court, including an ex parte order as provided for in this subsection, is required to possess or carry firearms or ammunition during the course of the person’s employment. Good cause consideration may include but not be limited to the protection and safety of the person to whom a restraining order is granted.

(g) Any person disqualified from ownership, possession, control, or the right to transfer ownership of firearms and ammunition under this section shall surrender or dispose of all firearms and ammunition in compliance with section 134-7.3.

(h) Any person violating subsection (a) or (b) shall be guilty of a class C felony; provided that any felon violating subsection (b) shall be guilty of a class B felony. Any person violating subsection (c), (d), (e), (f), or (g) shall be guilty of a misdemeanor.

134-7.3. Seizure of firearms upon disqualification

Updated: 
November 13, 2018

(a) If any applicant is denied a permit, the chiefs of police of the respective counties shall send, by certified mail, a notice setting forth the reasons for the denial and may require that the applicant voluntarily surrender all firearms and ammunition to the chief of police where the applicant resides or dispose of all firearms and ammunition. If an applicant fails to voluntarily surrender or dispose of all firearms and ammunition within thirty days from the date notice was mailed, the chief of police may seize all firearms and ammunition.

(b) Any person disqualified from ownership, possession, or control of firearms and ammunition under section 134-7, within seven days of disqualification, shall voluntarily surrender all firearms and ammunition to the chief of police where the person resides or dispose of all firearms and ammunition. If any person fails to voluntarily surrender or dispose of all firearms and ammunition within seven days from the date of disqualification, the chief of police may seize all firearms and ammunition.

(c) For any person disqualified from ownership, possession, or control of firearms and ammunition under section 134-7(c), or because the person has been admitted to a psychiatric facility, whether for emergency or involuntary hospitalization, pursuant to part IV of chapter 334, once the chief of police is notified that the person is disqualified, the chief of police shall promptly issue a notice to the disqualified person to immediately surrender all firearms and ammunition. The notice shall be in writing, shall set forth the reasons for the disqualification, and shall state the requirement that the person immediately surrender all firearms and ammunition to the chief of police. If any person fails to voluntarily surrender all firearms and ammunition upon receiving notice, the chief of police may seize all firearms and ammunition. The firearms and ammunition shall be held in police custody until the person has been medically documented to be no longer adversely affected as provided in section 134-7 or until transferred or sold by the owner. Nothing in this subsection shall be construed to limit the duties imposed by subsection (b).

(d) For the purposes of this section, “dispose” means selling the firearms to a gun dealer licensed under section 134-31, transferring ownership of the firearms to any person who meets the requirements of section 134-2, or surrendering all firearms to the chief of police where the person resides for storage or disposal; provided, for a person subject to section 134-7(f), “dispose” shall not include transferring ownership of the firearms to any person who meets the requirements of section 134-2.

(e) The chief of police of the respective counties shall adopt procedures to implement and administer the provisions of this section by December 31, 2001.

134-7.5. Seizure of firearms in domestic abuse situations; requirements; return of

Updated: 
November 13, 2018

(a) Any police officer who has reasonable grounds to believe that a person has recently assaulted or threatened to assault a family or household member may seize all firearms and ammunition that the police officer has reasonable grounds to believe were used or threatened to be used in the commission of the offense. The police officer may seize any firearms or ammunition that are in plain view of the officer or were discovered pursuant to a consensual search, as necessary for the protection of the officer or any family or household member. Firearms seized under this section shall be taken to the appropriate county police department for safekeeping or as evidence.

(b) Upon taking possession of a firearm or ammunition, the officer shall give the owner or person who was in lawful possession of the firearm or ammunition a receipt identifying the firearm or ammunition and indicating where the firearm or ammunition can be recovered.

(c) The officer taking possession of the firearm or ammunition shall notify the person against whom the alleged assault or threatened assault was inflicted of remedies and services available to victims of domestic violence, including the right to apply for a domestic abuse restraining order.

(d) The firearm or ammunition shall be made available to the owner or person who was in lawful possession of the firearm or ammunition within seven working days after the seizure when:

(1) The firearm or ammunition are not retained for use as evidence;

(2) The firearm or ammunition are not retained because they are possessed illegally;

(3) The owner or person who has lawful possession of the firearm or ammunition is not restrained by an order of any court from possessing a firearm or ammunition; and

(4) No criminal charges are pending against the owner or person who has lawful possession of the firearm or ammunition when a restraining order has already issued.

Title 15. Transportation and Utilities

Updated: 
November 13, 2018

Chapter 269. Public Utilities Commission

Updated: 
November 13, 2018

Part I. Public Utilities, Generally

Updated: 
November 13, 2018

269-16.93. Release of domestic abuse victims from shared wireless plans

Updated: 
November 13, 2018

(a) All wireless telecommunications service providers shall release, without charge, penalty, or fee, any victim of domestic abuse from a shared or family wireless service contract involving the victim’s abuser; provided that the victim submits an opt-out request in writing and with evidence of domestic abuse as documented by any of the following items:

(1) Valid police report documenting an instance or series of instances of domestic abuse;

(2) Order for protection granted pursuant to chapter 586; or

(3) Signed affidavit from a licensed medical or mental health care provider, employee of a court acting within the scope of their employment, or social worker.

(b) When a victim of domestic abuse submits an opt-out request to a wireless telecommunications service provider pursuant to subsection (a), the wireless telecommunications service provider shall, within forty-eight hours from the time the opt-out request is submitted to the wireless telecommunications service provider:

(1) Transfer the billing authority and all rights to the wireless telephone number or numbers of a shared wireless plan to the person who has been granted the release pursuant to subsection (a); or

(2) Remove or release the person, who has been granted the release pursuant to subsection (a), from a shared wireless plan and assign a substitute telephone number or numbers,

without charge, penalty, or fee.

(c) A cause of action shall not lie against any wireless telecommunications service provider, its officers, employees, or agents for the actions taken that are related to the transfer of the billing authority and rights to the wireless telephone number or numbers in accordance with this section.

(d) For purposes of this section:

“Domestic abuse shall” have the same meaning as in section 586-1.

“Wireless telecommunications service” shall have the same meaning as “commercial mobile radio service” as defined in title 47 Code of Federal Regulations section 20.3.

“Wireless telecommunications service provider” means a provider of wireless telecommunications service.

Title 21. Labor and Industrial Relations

Updated: 
November 13, 2018

Chapter 378. Employment Practices

Updated: 
November 13, 2018

378-71 Definitions

Updated: 
November 13, 2018

As used in this part:

“Child” means an individual who is a biological, adopted, or foster son or daughter; a stepchild; or a legal ward of an employee.

“Course of conduct” means acts over any period of time of repeatedly maintaining a visual or physical proximity to a person or conveying verbal or written threats, including threats conveyed through electronic communications or threats implied by conduct.

“Domestic abuse” means conduct defined in section 586-1.

“Domestic or sexual violence” means domestic abuse, sexual assault, or stalking.

“Electronic communications” includes communications via telephone, mobile phone, computer, e-mail, video recorder, fax machine, telex, or pager.

“Employee” means a person who performs services for hire for not fewer than six consecutive months for the employer from whom benefits are sought under this chapter.

“Health care provider” means a physician as defined under section 386-1.

“Sexual assault” means any conduct proscribed by chapter 707, part V.

“Stalking” means engaging in a course of conduct directed at a specifically targeted person that would cause a reasonable person to suffer substantial emotional distress or to fear bodily injury, sexual assault, or death to the person or to the person’s spouse, parent, child, or any other person who regularly resides in the person’s household, and where the conduct does cause the targeted person to have such distress or fear.

“Victim services organization” includes:

(1) A nonprofit, nongovernmental organization that provides assistance to victims of domestic or sexual violence or to advocates for such victims, including a rape crisis center;

(2) An organization operating a shelter or providing professional counseling services; or

(3) An organization providing assistance through the legal process.

378-72 Leave of absence for domestic or sexual violence

Updated: 
November 13, 2018

(a) An employer employing fifty or more employees shall allow an employee to take up to thirty days of unpaid victim leave from work per calendar year, or an employer employing not more than forty-nine employees shall allow an employee to take up to five days of unpaid leave from work per calendar year, if the employee or the employee’s minor child is a victim of domestic or sexual violence; provided the leave is to either:

(1) Seek medical attention for the employee or employee’s minor child to recover from physical or psychological injury or disability caused by domestic or sexual violence;

(2) Obtain services from a victim services organization;

(3) Obtain psychological or other counseling;

(4) Temporarily or permanently relocate; or

(5) Take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence, or other actions to enhance the physical, psychological, or economic health or safety of the employee or the employee’s minor child or to enhance the safety of those who associate with or work with the employee.

(b) An employee’s absence from work that is due to or resulting from domestic abuse or sexual violence against the employee or the employee’s minor child as provided in this section shall be considered by an employer to be a justification for leave for a reasonable period of time, not to exceed the total number of days allocable for each category of employer under subsection (a).

“Reasonable period of time” as used in this section means:

(1) Where due to physical or psychological injury to or disability to the employee or employee’s minor child, the period of time determined to be necessary by the attending health care provider, considering the condition of the employee or employee’s minor child, and the job requirements; and

(2) Where due to an employee’s need to take legal or other actions, including preparing for or participating in any civil or criminal legal proceeding, obtaining services from a victim services organization, or permanently or temporarily relocating, the period of time necessary to complete the activity as determined by the employee’s or employee’s minor child’s attorney or advocate, court, or personnel of the relevant victim services organization.

(c) Where an employee is a victim of domestic or sexual violence and seeks leave for medical attention to recover from physical or psychological injury or disability caused by domestic or sexual violence, the employer may request that the employee provide:

(1) A certificate from a health care provider estimating the number of leave days necessary and the estimated commencement and termination dates of leave required by the employee; and

(2) Prior to the employee’s return, a medical certificate from the employee’s attending health care provider attesting to the employee’s condition and approving the employee’s return to work.

(d) Where an employee has taken not more than five calendar days of leave for non-medical reasons, the employee shall provide certification to the employer in the form of a signed statement within a reasonable period after the employer’s request, that the employee or the employee’s minor child is a victim of domestic or sexual violence and the leave is for one of the purposes enumerated in subsection (a). If the leave exceeds five days per calendar year, then the certification shall be provided by one of the following methods:

(1) A signed written statement from an employee, agent, or volunteer of a victim services organization, from the employee’s attorney or advocate, from a minor child’s attorney or advocate, or a medical or other professional from whom the employee or the employee’s minor child has sought assistance related to the domestic or sexual violence; or

(2) A police or court record related to the domestic or sexual violence.

(e) If certification is required, no leave shall be protected until a certification, as provided in this section, is provided to the employer.

(f) The employee shall provide the employer with reasonable notice of the employee’s intention to take the leave, unless providing that notice is not practicable due to imminent danger to the employee or the employee’s minor child.

(g) Nothing in this section shall be construed to prohibit an employer from requiring an employee on victim leave to report not less than once a week to the employer on the status of the employee and intention of the employee to return to work.

(h) Upon return from leave under this section, the employee shall return to the employee’s original job or to a position of comparable status and pay, without loss of accumulated service credits and privileges, except that nothing in this subsection shall be construed to entitle any restored employee to the accrual of:

(1) Any seniority or employment benefits during any period of leave, unless the seniority or benefits would be provided to a similarly situated employee who was on leave due to a reason other than domestic or sexual violence; or

(2) Any right, benefit, or position of employment to which the employee would not have otherwise been entitled.

(i) All information provided to the employer under this section, including statements of the employee, or any other documentation, record, or corroborating evidence, and the fact that the employee or employee’s minor child has been a victim of domestic or sexual violence or the employee has requested leave pursuant to this section, shall be maintained in the strictest confidence by the employer, and shall not be disclosed, except to the extent that disclosure is:

(1) Requested or consented to by the employee;

(2) Ordered by a court or administrative agency; or

(3) Otherwise required by applicable federal or state law.

(j) Any employee denied leave by an employer in wilful violation of this section may file a civil action against the employer to enforce this section and recover costs, including reasonable attorney’s fees, incurred in the civil action.

378-73 Relationship to other leaves

Updated: 
November 13, 2018

If an employee is entitled to take paid or unpaid leave pursuant to other federal, state, or county law, or pursuant to an employment agreement, a collective bargaining agreement, or an employment benefits program or plan, which may be used for the purposes listed under section 378-72(a), the employee shall exhaust such other paid and unpaid leave benefits before victim leave benefits under this chapter may be applied. The combination of such other paid or unpaid leave benefits that may be applied and victim leave benefits shall not exceed the maximum number of days specified under section 378-72(a).

Division 3. Property; Family

Updated: 
November 13, 2018

Title 31. Family

Updated: 
November 13, 2018

Chapter 571. Family Courts

Updated: 
November 13, 2018

Part V. Procedure and Decree

Updated: 
November 13, 2018

571-46. Criteria and procedure in awarding custody and visitation; best interest of the child

Updated: 
November 13, 2018

(a) In actions for divorce, separation, annulment, separate maintenance, or any other proceeding where there is at issue a dispute as to the custody of a minor child, the court, during the pendency of the action, at the final hearing, or any time during the minority of the child, may make an order for the custody of the minor child as may seem necessary or proper. In awarding the custody, the court shall be guided by the following standards, considerations, and procedures:

(1) Custody should be awarded to either parent or to both parents according to the best interests of the child, and the court also may consider frequent, continuing, and meaningful contact of each parent with the child unless the court finds that a parent is unable to act in the best interest of the child;

(2) Custody may be awarded to persons other than the father or mother whenever the award serves the best interest of the child. Any person who has had de facto custody of the child in a stable and wholesome home and is a fit and proper person shall be entitled prima facie to an award of custody;

(3) If a child is of sufficient age and capacity to reason, so as to form an intelligent preference, the child’s wishes as to custody shall be considered and be given due weight by the court;

(4) Whenever good cause appears therefor, the court may require an investigation and report concerning the care, welfare, and custody of any minor child of the parties. When so directed by the court, investigators or professional personnel attached to or assisting the court, hereinafter referred to as child custody evaluators, shall make investigations and reports that shall be made available to all interested parties and counsel before hearing, and the reports may be received in evidence if no objection is made and, if objection is made, may be received in evidence; provided the person or persons responsible for the report are available for cross-examination as to any matter that has been investigated; and provided further that the court shall define, in accordance with section 571-46.4, the requirements to be a court-appointed child custody evaluator, the standards of practice, ethics, policies, and procedures required of court-appointed child custody evaluators in the performance of their duties for all courts, and the powers of the courts over child custody evaluators to effectuate the best interests of a child in a contested custody dispute pursuant to this section. Where there is no child custody evaluator available that meets the requirements and standards, or any child custody evaluator to serve indigent parties, the court may appoint a person otherwise willing and available in accordance with section 571-46.4;

(5) The court may hear the testimony of any person or expert, produced by any party or upon the court’s own motion, whose skill, insight, knowledge, or experience is such that the person’s or expert’s testimony is relevant to a just and reasonable determination of what is for the best physical, mental, moral, and spiritual well-being of the child whose custody is at issue;

(6) Any custody award shall be subject to modification or change whenever the best interests of the child require or justify the modification or change and, wherever practicable, the same person who made the original order shall hear the motion or petition for modification of the prior award;

(7) Reasonable visitation rights shall be awarded to parents, grandparents, siblings, and any person interested in the welfare of the child in the discretion of the court, unless it is shown that rights of visitation are detrimental to the best interests of the child;

(8) The court may appoint a guardian ad litem to represent the interests of the child and may assess the reasonable fees and expenses of the guardian ad litem as costs of the action, payable in whole or in part by either or both parties as the circumstances may justify;

(9) In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that family violence has been committed by a parent raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence. In addition to other factors that a court shall consider in a proceeding in which the custody of a child or visitation by a parent is at issue, and in which the court has made a finding of family violence by a parent:

(A) The court shall consider as the primary factor the safety and well-being of the child and of the parent who is the victim of family violence;

(B) The court shall consider the perpetrator’s history of causing physical harm, bodily injury, or assault or causing reasonable fear of physical harm, bodily injury, or assault to another person; and

(C) If a parent is absent or relocates because of an act of family violence by the other parent, the absence or relocation shall not be a factor that weighs against the parent in determining custody or visitation;

(10) A court may award visitation to a parent who has committed family violence only if the court finds that adequate provision can be made for the physical safety and psychological well-being of the child and for the safety of the parent who is a victim of family violence;

(11) In a visitation order, a court may:

(A) Order an exchange of a child to occur in a protected setting;

(B) Order visitation supervised by another person or agency;

(C) Order the perpetrator of family violence to attend and complete, to the satisfaction of the court, a program of intervention for perpetrators or other designated counseling as a condition of the visitation;

(D) Order the perpetrator of family violence to abstain from possession or consumption of alcohol or controlled substances during the visitation and for twenty-four hours preceding the visitation;

(E) Order the perpetrator of family violence to pay a fee to defray the costs of supervised visitation;

(F) Prohibit overnight visitation;

(G) Require a bond from the perpetrator of family violence for the return and safety of the child. In determining the amount of the bond, the court shall consider the financial circumstances of the perpetrator of family violence;

(H) Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of family violence, or other family or household member; and

(I) Order the address of the child and the victim to be kept confidential;

(12) The court may refer but shall not order an adult who is a victim of family violence to attend, either individually or with the perpetrator of the family violence, counseling relating to the victim’s status or behavior as a victim as a condition of receiving custody of a child or as a condition of visitation;

(13) If a court allows a family or household member to supervise visitation, the court shall establish conditions to be followed during visitation;

(14) A supervised visitation center shall provide a secure setting and specialized procedures for supervised visitation and the transfer of children for visitation and supervision by a person trained in security and the avoidance of family violence;

(15) The court may include in visitation awarded pursuant to this section visitation by electronic communication provided that the court shall additionally consider the potential for abuse or misuse of the electronic communication, including the equipment used for the communication, by the person seeking visitation or by persons who may be present during the visitation or have access to the communication or equipment; whether the person seeking visitation has previously violated a temporary restraining order or protective order; and whether adequate provision can be made for the physical safety and psychological well-being of the child and for the safety of the custodial parent;

(16) The court may set conditions for visitation by electronic communication under paragraph (15), including visitation supervised by another person or occurring in a protected setting. Visitation by electronic communication shall not be used to:

(A) Replace or substitute an award of custody or physical visitation except where:

(i) Circumstances exist that make a parent seeking visitation unable to participate in physical visitation, including military deployment; or

(ii) Physical visitation may subject the child to physical or extreme psychological harm; or

(B) Justify or support the relocation of a custodial parent; and

(17) Notwithstanding any provision to the contrary, no natural parent shall be granted custody of or visitation with a child if the natural parent has been convicted in a court of competent jurisdiction in any state of rape or sexual assault and the child was conceived as a result of that offense; provided that:

(A) A denial of custody or visitation under this paragraph shall not affect the obligation of the convicted natural parent to support the child;

(B) The court may order the convicted natural parent to pay child support;

(C) This paragraph shall not apply if subsequent to the date of conviction, the convicted natural parent and custodial natural parent cohabitate and establish a mutual custodial environment for the child; and

(D) A custodial natural parent may petition the court to grant the convicted natural parent custody and visitation denied pursuant to this paragraph, and upon such petition the court may grant custody and visitation to the convicted natural parent where it is in the best interest of the child.

(b) In determining what constitutes the best interest of the child under this section, the court shall consider, but not be limited to, the following:

(1) Any history of sexual or physical abuse of a child by a parent;

(2) Any history of neglect or emotional abuse of a child by a parent;

(3) The overall quality of the parent-child relationship;

(4) The history of caregiving or parenting by each parent prior and subsequent to a marital or other type of separation;

(5) Each parent’s cooperation in developing and implementing a plan to meet the child’s ongoing needs, interests, and schedule; provided that this factor shall not be considered in any case where the court has determined that family violence has been committed by a parent;

(6) The physical health needs of the child;

(7) The emotional needs of the child;

(8) The safety needs of the child;

(9) The educational needs of the child;

(10) The child’s need for relationships with siblings;

(11) Each parent’s actions demonstrating that they allow the child to maintain family connections through family events and activities; provided that this factor shall not be considered in any case where the court has determined that family violence has been committed by a parent;

(12) Each parent’s actions demonstrating that they separate the child’s needs from the parent’s needs;

(13) Any evidence of past or current drug or alcohol abuse by a parent;

(14) The mental health of each parent;

(15) The areas and levels of conflict present within the family; and

(16) A parent’s prior wilful misuse of the protection from abuse process under chapter 586 to gain a tactical advantage in any proceeding involving the custody determination of a minor. Such wilful misuse may be considered only if it is established by clear and convincing evidence, and if it is further found by clear and convincing evidence that in the particular family circumstance the wilful misuse tends to show that, in the future, the parent who engaged in the wilful misuse will not be able to cooperate successfully with the other parent in their shared responsibilities for the child. The court shall articulate findings of fact whenever relying upon this factor as part of its determination of the best interests of the child. For the purposes of this section, when taken alone, the voluntary dismissal of a petition for protection from abuse shall not be treated as prima facie evidence that a wilful misuse of the protection from abuse process has occurred.

Chapter 572C. Reciprocal Beneficiaries

Updated: 
November 13, 2018

572C-2 Findings

Updated: 
November 13, 2018

The legislature acknowledges that there are many individuals who have significant personal, emotional, and economic relationships with another individual yet are prohibited by legal restrictions from marrying. For example, two individuals who are related to one another, such as a widowed mother and her unmarried son. Therefore, the legislature believes that certain rights and benefits presently available only to married couples should be made available to couples comprised of two individuals who are legally prohibited from marrying one another.

572C-4 Requisites of a valid reciprocal beneficiary relationship

Updated: 
November 13, 2018

In order to enter into a valid reciprocal beneficiary relationship, it shall be necessary that:

(1) Each of the parties be at least eighteen years old;

(2) Neither of the parties be married, a party to another reciprocal beneficiary relationship, or a partner in a civil union;

(3) The parties be legally prohibited from marrying one another under chapter 572;

(4) Consent of either party to the reciprocal beneficiary relationship has not been obtained by force, duress, or fraud; and

(5) Each of the parties sign a declaration of reciprocal beneficiary relationship as provided in section 572C-5.

Chapter 577. Children

Updated: 
November 13, 2018

577-1 Age of majority

Updated: 
November 13, 2018

All persons residing in the State, who have attained the age of eighteen years, shall be regarded as of legal age and their period of minority to have ceased.

Chapter 580. Annulment, Divorce, and Separation

Updated: 
November 13, 2018

Part 1. General Provisions

Updated: 
November 13, 2018

580-1. Jurisdiction; hearing

Updated: 
November 13, 2018

(a) Exclusive original jurisdiction in matters of annulment, divorce, and separation, subject to section 603-37 as to change of venue, and subject also to appeal according to law, is conferred upon the family court of the circuit in which the applicant has been domiciled or has been physically present for a continuous period of at least three months next preceding the application therefor, except as provided in subsection (b). No absolute divorce from the bond of matrimony shall be granted for any cause unless either party to the marriage has been domiciled or has been physically present in the State for a continuous period of at least six months next preceding the application therefor, except as provided in subsection (b). A person who may be residing on any military or federal base, installation, or reservation within the State or who may be present in the State under military orders shall not thereby be prohibited from meeting the requirements of this section. The family court of each circuit shall have jurisdiction over all proceedings relating to the annulment, divorce, and separation of civil unions entered into in this State or unions recognized as civil unions in this State in the same manner as marriages.

(b) An action for annulment, divorce, or separation may be commenced where neither party to the marriage meets the domicile or physical presence requirements of subsection (a) at the time the action is commenced, if:

(1) The marriage was solemnized under chapter 572 in this State; and

(2) Neither party to the marriage is able to pursue an action for annulment, divorce, or separation where the parties are domiciled because both parties are domiciled in a jurisdiction or jurisdictions that do not recognize their marriage.

There shall be a rebuttable presumption that a jurisdiction will not maintain an action for annulment, divorce, or separation if the jurisdiction or jurisdictions where the parties are domiciled do not recognize the parties’ marriage.

(c) Actions brought under subsection (b) shall be commenced in the circuit where the marriage was solemnized and the law of this State shall govern. Jurisdiction over actions brought under subsection (b) shall be limited to decrees granting annulment, divorce, or separation that address the status or dissolution of the marriage alone; provided that if both parties to the marriage consent to the family court’s personal jurisdiction or if jurisdiction otherwise exists by law, the family court shall adjudicate child custody, spousal support, child support, property division, or other matters related to the annulment, divorce, or separation.

580-10.5. Automatic restraining order

Updated: 
November 13, 2018

(a) Notwithstanding section 580-10, each party to a complaint for annulment, divorce, or separation shall automatically be subject to a restraining order that shall be effective with regard to the plaintiff upon the filing of the complaint and with regard to the defendant upon service of the summons and complaint or any other acceptance of service by the defendant. The restraining order shall specify that:

(1) Neither party shall sell, transfer, encumber, conceal, assign, remove, or in any way dispose of any property, real or personal, belonging to or acquired by either party, except as:

(A) Required for reasonable expenses of living;

(B) Occurring in the ordinary and usual course of business;

(C) Required for payment of reasonable attorney’s fees and costs in connection with the action;

(D) Occurring pursuant to a written agreement of both parties; or

(E) Required by order of the court;

(2) Neither party shall incur any further debts that would burden the credit of the other party, including but not limited to further borrowing against any credit line secured by the marital residence or unreasonably using credit cards or cash advances against credit or bank cards; provided that this paragraph shall not apply to reasonable amounts of debt necessary for living and business expenses, including child educational expenses and reasonable litigation fees and costs for the pending action;

(3) Neither party shall directly or indirectly change the beneficiary of any life insurance policy, pension or retirement plan, or pension or retirement investment account, except with the written consent of the other party or by order of the court;

(4) Neither party shall directly or indirectly cause the other party or a minor child to be removed from coverage under an existing insurance policy, including medical, dental, life, automobile, and disability insurance. The parties shall maintain all insurance coverage in full force and effect; and

(5) Neither party shall remove a minor child of the parties from the island of that child’s current residence nor remove a minor child of the parties from the school that child is currently attending.

(b) After service of the complaint for annulment, divorce, or separation, the defendant may file a motion to set aside or modify the restraining order and may choose to file the motion without submitting to the jurisdiction of the court. The court shall proceed to hear and determine the motion as expeditiously as possible.

(c) It is a defense to any enforcement action under this section that an act of domestic abuse as defined in section 586-1 has occurred.

(d) Any sanction for any violation of this section shall remain within the discretion of the court, which shall take into account any instance of domestic abuse and the best interests of the child for violations of subsection (a)(5).

(e) The restraining order shall remain in effect during the pendency of the action, unless it is modified by agreement of the parties or by further order of the court.

(f) The provisions of the restraining order shall be issued by the family court and a copy thereof shall be served with every complaint to which it applies. If service is by publication, the public notice shall include a statement that a restraining order has been issued by the court. The provisions of the restraining order need not be reprinted in the public notice.

(g) The restraining order shall be vacated upon the entry of an annulment, divorce, or separation decree.

(h) An automatic restraining order shall not be imposed under this section if a written order was previously imposed under this chapter for a similar purpose.

Part III. Divorce

Updated: 
November 13, 2018

580-41. Divorce

Updated: 
November 13, 2018
The family court shall decree a divorce from the bond of matrimony upon the application of either party when the court finds:
(1) The marriage is irretrievably broken;
(2) The parties have lived separate and apart under a decree of separation from bed and board entered by any court of competent jurisdiction, the term of separation has expired, and no reconciliation has been effected;
(3) The parties have lived separate and apart for a period of two years or more under a decree of separate maintenance entered by any court of competent jurisdiction, and no reconciliation has been effected; or
(4) The parties have lived separate and apart for a continuous period of two years or more immediately preceding the application, there is no reasonable likelihood that cohabitation will be resumed, and the court is satisfied that, in the particular circumstances of the case, it would not be harsh and oppressive to the defendant or contrary to the public interest to a divorce on this ground on the complaint of the plaintiff.

580-47. Support orders; division of property

Updated: 
November 13, 2018
(a) Upon granting a divorce, or thereafter if, in addition to the powers granted in subsections (c) and (d), jurisdiction of those matters is reserved under the decree by agreement of both parties or by order of court after finding that good cause exists, the court may make any further orders as shall appear just and equitable (1) compelling the parties or either of them to provide for the support, maintenance, and education of the children of the parties; (2) compelling either party to provide for the support and maintenance of the other party; (3) finally dividing and distributing the estate of the parties, real, personal, or mixed, whether community, joint, or separate; and (4) allocating, as between the parties, the responsibility for the payment of the debts of the parties whether community, joint, or separate, and the attorney’s fees, costs, and expenses incurred by each party by reason of the divorce. In making these further orders, the court shall take into consideration: the respective merits of the parties, the relative abilities of the parties, the condition in which each party will be left by the divorce, the burdens imposed upon either party for the benefit of the children of the parties, the concealment of or failure to disclose income or an asset, or violation of a restraining order issued under section 580-10(a) or (b), if any, by either party, and all other circumstances of the case. In establishing the amounts of child support, the court shall use the guidelines established under section 576D-7. Provision may be made for the support, maintenance, and education of an adult or minor child and for the support, maintenance, and education of an incompetent adult child whether or not the petition is made before or after the child has attained the age of majority. In those cases where child support payments are to continue due to the adult child’s pursuance of education, the agency, three months prior to the adult child’s nineteenth birthday, shall send notice by regular mail to the adult child and the custodial parent that prospective child support will be suspended unless proof is provided by the custodial parent or adult child to the child support enforcement agency, prior to the child’s nineteenth birthday, that the child is presently enrolled as a full-time student in school or has been accepted into and plans to attend as a full-time student for the next semester a post-high school university, college, or vocational school. If the custodial parent or adult child fails to do so, prospective child support payments may be automatically suspended by the child support enforcement agency, hearings officer, or court upon the child reaching the age of nineteen years. In addition, if applicable, the agency, hearings officer, or court may issue an order terminating existing assignments against the responsible parent’s income and income assignment orders.
In addition to any other relevant factors considered, the court, in ordering spousal support and maintenance, shall consider the following factors:
(1) Financial resources of the parties;
(2) Ability of the party seeking support and maintenance to meet his or her needs independently;
(3) Duration of the marriage;
(4) Standard of living established during the marriage;
(5) Age of the parties;
(6) Physical and emotional condition of the parties;
(7) Usual occupation of the parties during the marriage;
(8) Vocational skills and employability of the party seeking support and maintenance;
(9) Needs of the parties;
(10) Custodial and child support responsibilities;
(11) Ability of the party from whom support and maintenance is sought to meet his or her own needs while meeting the needs of the party seeking support and maintenance;
(12) Other factors which measure the financial condition in which the parties will be left as the result of the action under which the determination of maintenance is made; and
(13) Probable duration of the need of the party seeking support and maintenance.
The court may order support and maintenance to a party for an indefinite period or until further order of the court; provided that in the event the court determines that support and maintenance shall be ordered for a specific duration wholly or partly based on competent evidence as to the amount of time which will be required for the party seeking support and maintenance to secure adequate training, education, skills, or other qualifications necessary to qualify for appropriate employment, whether intended to qualify the party for a new occupation, update or expand existing qualification, or otherwise enable or enhance the employability of the party, the court shall order support and maintenance for a period sufficient to allow completion of the training, education, skills, or other activity, and shall allow, in addition, sufficient time for the party to secure appropriate employment.
(b) An order as to the custody, management, and division of property and as to the payment of debts and the attorney’s fees, costs and expenses incurred in the divorce shall be final and conclusive as to both parties subject only to appeal as in civil cases. The court shall at all times, including during the pendency of any appeal, have the power to grant any and all orders that may be necessary to protect and provide for the support and maintenance of the parties and any children of the parties to secure justice, to compel either party to advance reasonable amounts for the expenses of the appeal including attorney’s fees to be incurred by the other party, and to amend and revise such orders from time to time.
(c) No order entered under the authority of subsection (a) or entered thereafter revising so much of such an order as provides for the support, maintenance, and education of the children of the parties shall impair the power of the court from time to time to revise its orders providing for the support, maintenance, and education of the children of the parties upon a showing of a change in the circumstances of either party or any child of the parties since the entry of any prior order relating to the support, maintenance, and education. The establishment of the guidelines or the adoption of any modifications made to the guidelines set forth in section 576D-7 may constitute a change in circumstances sufficient to permit review of the support order. A material change of circumstances will be presumed if support as calculated pursuant to the guidelines is either ten per cent greater or less than the support amount in the outstanding support order. The need to provide for the child’s health care needs through health insurance or other means shall be a basis for petitioning for a modification of the support order. The most current guidelines shall be used to calculate the amount of the child support obligation.
(d) Upon the motion of either party supported by an affidavit setting forth in particular a material change in the physical or financial circumstances of either party, or upon a showing of other good cause, the moving party, in the discretion of the court, and upon adequate notice to the other party, may be granted a hearing. The fact that the moving party is in default or arrears in the performance of any act or payment of any sums theretofore ordered to be done or paid by the party shall not necessarily constitute a bar to the granting of the hearing. The court, upon such hearing, for good cause shown may amend or revise any order and shall consider all proper circumstances in determining the amount of the allowance, if any, which shall thereafter be ordered.
(e) The responsible parent or the custodial parent shall have a right to petition the family court or the child support enforcement agency not more than once every three years for review and adjustment of the child support order without having to show a change in circumstances. The responsible or custodial parent shall not be precluded from petitioning the family court or the child support enforcement agency for review and adjustment more than once in any three-year period if the second or subsequent request is supported by proof of a substantial or material change of circumstances.
(f) Attorney’s fees and costs. The court hearing any motion for orders either revising an order for the custody, support, maintenance, and education of the children of the parties, or an order for the support and maintenance of one party by the other, or a motion for an order to enforce any such order or any order made under subsection (a) of this section, may make such orders requiring either party to pay or contribute to the payment of the attorney’s fees, costs, and expenses of the other party relating to such motion and hearing as shall appear just and equitable after consideration of the respective merits of the parties, the relative abilities of the parties, the economic condition of each party at the time of the hearing, the burdens imposed upon either party for the benefit of the children of the parties, the concealment of or failure to disclose income or an asset, or violation of a restraining order issued under section 580-10(a) or (b), if any, by either party, and all other circumstances of the case.

Chapter 586. Domestic Abuse Protective Orders

Updated: 
November 13, 2018

Part I. General Provisions

Updated: 
November 13, 2018

586-1 Definitions

Updated: 
November 13, 2018

As used in this chapter:

“Dating relationship” means a romantic, courtship, or engagement relationship, often but not necessarily characterized by actions of an intimate or sexual nature, but does not include a casual acquaintanceship or ordinary fraternization between persons in a business or social context.

“Domestic abuse” means:

(1) Physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault, extreme psychological abuse or malicious property damage between family or household members; or

(2) Any act which would constitute an offense under section 709-906, or under part V or VI of chapter 707 committed against a minor family or household member by an adult family or household member.

“Extreme psychological abuse” means an intentional or knowing course of conduct directed at an individual that seriously alarms or disturbs consistently or continually bothers the individual, and that serves no legitimate purpose; provided that such course of conduct would cause a reasonable person to suffer extreme emotional distress.

“Family or household member”:

(1) Means spouses or reciprocal beneficiaries, former spouses or former reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, persons jointly residing or formerly residing in the same dwelling unit, and persons who have or have had a dating relationship; and

(2) Does not include those who are, or were, adult roommates or cohabitants only by virtue of an economic or contractual affiliation.

“Malicious property damage” means an intentional or knowing damage to the property of another, without his consent, with an intent to thereby cause emotional distress.

586-2 Court jurisdiction

Updated: 
November 13, 2018

An application for relief under this chapter may be filed in any family court in the circuit in which the petitioner resides. Actions under this chapter shall be given docket priorities by the court.

586-3 Order for protection

Updated: 
November 13, 2018

(a) There shall exist an action known as a petition for an order for protection in cases of domestic abuse.

(b) A petition for relief under this chapter may be made by:

(1) Any family or household member on the member’s own behalf or on behalf of a family or household member who is a minor or who is an incapacitated person as defined in section 560:5-102 or who is physically unable to go to the appropriate place to complete or file the petition; or

(2) Any state agency on behalf of a person who is a minor or who is an incapacitated person as defined in section 560:5-102 or a person who is physically unable to go to the appropriate place to complete or file the petition on behalf of that person.

(c) A petition for relief shall be in writing upon forms provided by the court and shall allege, under penalty of perjury, that: a past act or acts of abuse may have occurred; threats of abuse make it probable that acts of abuse may be imminent; or extreme psychological abuse or malicious property damage is imminent; and be accompanied by an affidavit made under oath or a statement made under penalty of perjury stating the specific facts and circumstances from which relief is sought.

(d) The family court shall designate an employee or appropriate nonjudicial agency to assist the person in completing the petition.

586-4 Temporary restraining order

Updated: 
November 13, 2018

(a) Upon petition to a family court judge, an ex parte temporary restraining order may be granted without notice to restrain either or both parties from contacting, threatening, or physically abusing each other, notwithstanding that a complaint for annulment, divorce, or separation has not been filed. The order may be granted to any person who, at the time the order is granted, is a family or household member as defined in section 586-1 or who filed a petition on behalf of a family or household member. The order shall enjoin the respondent or person to be restrained from performing any combination of the following acts:

(1) Contacting, threatening, or physically abusing the protected party;

(2) Contacting, threatening, or physically abusing any person residing at the protected party’s residence; or

(3) Entering or visiting the protected party’s residence.

The ex parte temporary restraining order may also enjoin or restrain both of the parties from taking, concealing, removing, threatening, physically abusing, or otherwise disposing of any animal identified to the court as belonging to a household, until further order of the court.

(b) For any person who is alleged to be a family or household member by virtue of a dating relationship, the court may consider the following factors in determining whether a dating relationship exists:

(1) The length of the relationship;

(2) The nature of the relationship; and

(3) The frequency of the interaction between the parties.

(c) The family court judge may issue the ex parte temporary restraining order orally, if the person being restrained is present in court. The order shall state that there is probable cause to believe that a past act or acts of abuse have occurred, or that threats of abuse make it probable that acts of abuse may be imminent. The order further shall state that the temporary restraining order is necessary for the purposes of: preventing acts of abuse or preventing a recurrence of actual domestic abuse and ensuring a period of separation of the parties involved. The order shall also describe in reasonable detail the act or acts sought to be restrained. Where necessary, the order may require either or both of the parties involved to leave the premises during the period of the order; may also restrain the party or parties to whom it is directed from contacting, threatening, or physically abusing the applicant’s family or household members; and may enjoin or restrain both parties from taking, concealing, removing, threatening, physically abusing, or otherwise disposing of any animal identified to the court as belonging to a household, until further order of the court. The order shall not only be binding upon the parties to the action, but also upon their officers, agents, servants, employees, attorneys, or any other persons in active concert or participation with them. The order shall enjoin the respondent or person to be restrained from performing any combination of the following acts:

(1) Contacting, threatening, or physically abusing the protected party;

(2) Contacting, threatening, or physically abusing any person residing at the protected party’s residence;

(3) Entering or visiting the protected party’s residence; or

(4) Taking, concealing, removing, threatening, physically abusing, or otherwise disposing of any animal identified to the court as belonging to a household, until further order of the court.

(d) If a divorce or a child custody proceeding is pending, a petition for a temporary restraining order may be filed in that same proceeding to the extent practicable. Any decree or order issued in a divorce or child custody proceeding subsequent to the petition being filed or an order being issued pursuant to this section, in the discretion of the court hearing the divorce or child custody proceeding, may supersede in whole or part the orders issued pursuant to this section. The factual findings and rulings made in connection with the granting or denying of a temporary restraining order may not have binding effect in any other family court proceeding, including child custody determinations under section 571-46, and the court in such proceedings may give de novo consideration to the facts and circumstances alleged in making later determinations affecting the parties, including determination of custody and visitation.

(e) When a temporary restraining order is granted and the respondent or person to be restrained knows of the order, a knowing or intentional violation of the restraining order is a misdemeanor. A person convicted under this section shall undergo domestic violence intervention at any available domestic violence program as ordered by the court. The court additionally shall sentence a person convicted under this section as follows:

(1) Except as provided in paragraph (2), for a first conviction for a violation of the temporary restraining order, the person shall serve a mandatory minimum jail sentence of forty-eight hours and be fined not less than $150 nor more than $500; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine;

(2) For a first conviction for a violation of the temporary restraining order, if the person has a prior conviction for any of the following felonies:

(A) Section 707-701 relating to murder in the first degree;

(B) Section 707-701.5 relating to murder in the second degree;

(C) Section 707-710 relating to assault in the first degree;

(D) Section 707-711 relating to assault in the second degree;

(E) Section 707-720 relating to kidnapping;

(F) Section 707-721 relating to unlawful imprisonment in the first degree;

(G) Section 707-730 relating to sexual assault in the first degree;

(H) Section 707-731 relating to sexual assault in the second degree;

(I) Section 707-732 relating to sexual assault in the third degree;

(J) Section 707-733.6 relating to continuous sexual assault of a minor under the age of fourteen years;

(K) Section 707-750 relating to promoting child abuse in the first degree;

(L) Section 708-810 relating to burglary in the first degree;

(M) Section 708-811 relating to burglary in the second degree;

(N) Section 709-906 relating to abuse of family or household members; or

(O) Section 711-1106.4 relating to aggravated harassment by stalking;

and if any of these offenses has been committed against a family or household member as defined in section 586-1, the person shall serve a mandatory minimum term of imprisonment of fifteen days and be fined not less than $150 nor more than $600; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine; and

(3) For the second and any subsequent conviction for a violation of the temporary restraining order, the person shall serve a mandatory minimum jail sentence of thirty days and be fined not less than $250 nor more than $1,000; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine.

Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.

The court may suspend any jail sentence, except for the mandatory sentences under paragraphs (1), (2), and (3) upon condition that the defendant remain alcohol and drug-free, conviction-free, or complete court-ordered assessments or intervention. Nothing in this section shall be construed as limiting the discretion of the judge to impose additional sanctions authorized in sentencing for a misdemeanor.

(f) Any fines collected pursuant to subsection (e) shall be deposited into the spouse and child abuse special account established under section 601-3.6.

586-5 Period of order; hearing

Updated: 
November 13, 2018

(a) A temporary restraining order granted pursuant to this chapter shall remain in effect at the discretion of the court, for a period not to exceed one hundred eighty days from the date the order is granted or until the effective date, as defined in section 586-5.6, of a protective order issued by the court, whichever occurs first.

(b) On the earliest date that the business of the court will permit, but no later than fifteen days from the date the temporary restraining order is granted, the court, after giving due notice to all parties, shall hold a hearing on the application requiring cause to be shown why the order should not continue. In the event that service has not been effected, the court may set a new date for the hearing; provided that the date shall not exceed ninety days from the date the temporary restraining order was granted. All parties shall be present at the hearing and may be represented by counsel.

The protective order may include all orders stated in the temporary restraining order and may provide further relief, as the court deems necessary to prevent domestic abuse or a recurrence of abuse, including orders establishing temporary visitation with regard to minor children of the parties and orders to either or both parties to participate in domestic violence intervention.

586-5.5 Protective order; additional orders

Updated: 
November 13, 2018

(a) If, after hearing all relevant evidence, the court finds that the respondent has failed to show cause why the order should not be continued and that a protective order is necessary to prevent domestic abuse or a recurrence of abuse, the court may order that a protective order be issued for a further fixed reasonable period as the court deems appropriate.

The protective order may include all orders stated in the temporary restraining order and may provide for further relief as the court deems necessary to prevent domestic abuse or a recurrence of abuse, including orders establishing temporary visitation and custody with regard to minor children of the parties and orders to either or both parties to participate in domestic violence intervention services. If the court finds that the party meets the requirements under section 334-59(a)(2), the court further may order that the party be taken to the nearest facility for emergency examination and treatment.

(b) A protective order may be extended for such further fixed reasonable period as the court deems appropriate. Upon application by a person or agency capable of petitioning under section 586-3, the court shall hold a hearing to determine whether the protective order should be extended. In making a determination, the court shall consider evidence of abuse and threats of abuse that occurred prior to the initial restraining order and whether good cause exists to extend the protective order.

The extended protective order may include all orders stated in the preceding restraining order and may provide such further relief as the court deems necessary to prevent domestic abuse or a recurrence of abuse, including orders establishing temporary visitation and custody with regard to minor children of the parties and orders to either or both parties to participate in domestic violence intervention services. The court may terminate the extended protective order at any time with the mutual consent of the parties.

586-5.8. Transfer or release of domestic abuse victims from shared wireless plans

Updated: 
November 13, 2018

(a) The court may issue an order requiring a wireless telecommunications service provider, without charge, penalty, or fee, to:

(1) Transfer the billing authority and all rights to the wireless telephone number or numbers of a shared wireless plan to a petitioner who has been granted an order for protection pursuant to this chapter if the petitioner is not the account holder of the shared wireless plan; provided that if the petitioner is not the protected party named in the order for protection, the billing authority and rights to the wireless telephone number or numbers of a shared wireless plan may be transferred to another person who shall serve as the account holder, as requested by or on behalf of the protected party with the protected party’s approval; or

(2) Remove or release the petitioner from a shared wireless plan and assign a substitute telephone number or numbers; provided that if the petitioner is not the protected party named in the order for protection, the court may order that the protected party be removed or released from a shared wireless plan and assigned a substitute telephone number or numbers and order a person, as requested by or on behalf of the protected party with the protected party’s approval, to be the account holder for the substitute telephone number or numbers.

(b) The order issued pursuant to subsection (a) shall be a separate order that is directed to the wireless telecommunications service provider. The order shall list the name and billing telephone number of the account holder, the name of the person to whom the telephone number or numbers will be transferred, and each telephone number to be transferred.

(c) A cause of action shall not lie against any wireless telecommunications service provider, its officers, employees, or agents for the actions taken that are related to the transfer of the billing authority and rights to the wireless telephone number or numbers in accordance with the terms of a court order issued pursuant to this section.

(d) For purposes of this section:

“Wireless telecommunications service” shall have the same meaning as “commercial mobile radio service” as defined in title 47 Code of Federal Regulations section 20.3.

“Wireless telecommunications service provider” means a provider of wireless telecommunications service.

586-5.6 Effective date

Updated: 
November 13, 2018

The temporary restraining order shall be effective as of the date of signing and filing; provided that if a temporary restraining order is granted orally in the presence of all the parties and the court determines that each of the parties understands the order and its conditions, if any, then the order shall be effective as of the date it is orally stated on the record by the court until further order of the court. Protective orders orally stated by the court on the record shall be effective as of the date of the hearing if the respondent attends the hearing or, if the respondent was served but failed to appear, then upon service of the protective order upon the respondent until further order of the court; provided that all oral protective orders shall be reduced to writing and issued forthwith. The judiciary shall provide forms which will enable the court to issue all temporary restraining orders forthwith.

586-6 Notice of order

Updated: 
November 13, 2018

(a) Any order issued under this chapter shall either be personally served upon the respondent, or served by certified mail, unless the respondent was present at the hearing in which case the respondent shall be deemed to have notice of the order. A filed copy of each order issued under this chapter shall be served by regular mail upon the chief of police of each county.

(b) Except as otherwise provided in this chapter or in the order, a law enforcement officer as defined in section 701-118 may use a reliable copy, facsimile telecommunication, or other reliable reproduction of an order issued pursuant to this chapter in lieu of the original order for purposes of this section. Any such copy, facsimile telecommunication, or other reproduction shall be a complete reproduction of the entire original order and may only be transmitted from law enforcement officer to law enforcement officer until served.

586-7 Assistance of police in service or execution

Updated: 
November 13, 2018

When an order is issued under this chapter upon request of the petitioner, the court may order the police department to serve the order and related documents upon respondent and to accompany the petitioner and assist in placing the petitioner in possession of the dwelling or residence.

586-8 Right to apply for relief

Updated: 
November 13, 2018

(a) A person’s right to apply for relief shall not be affected by the person’s leaving the residence or household to avoid abuse.

(b) The court shall not require security or bond of any party unless it deems [it] necessary in exceptional cases.

586-9 Modification of order

Updated: 
November 13, 2018

Upon application, notice to all parties, and hearing, the court may modify the terms of an existing order for protection. The court may deny, without hearing, a motion to dismiss or to modify the terms of an existing order for protection if the motion, on its face, does not allege facts sufficient to establish a material change in the circumstances of the parties since the issuance or last modification of the order.

586-10 Copy to law enforcement agency

Updated: 
November 13, 2018

(a) Any order for protection granted pursuant to this chapter shall be transmitted by the clerk of the court within twenty-four hours to the appropriate county police department.

(b) Each county police department shall make available to other law enforcement officers in the same county, through a system for verification, information as to the existence and status of any order for protection issued pursuant to this chapter.

586-10.5 Reports by the department of human services; court responsibilities

Updated: 
November 13, 2018


In cases where there are allegations of domestic abuse involving a family or household member who is a minor or an incapacitated person as defined in section 560:5-102, the employee or appropriate nonjudicial agency designated by the family court to assist the petitioner shall report the matter to the department of human services, as required under chapters 350 and 587A, and shall further notify the department of the granting of the temporary restraining order and of the hearing date. The department of human services shall provide the family court with a written report on the disposition of the referral. The court shall file the report and mail it to the petitioner and respondent at least two working days before the hearing date, if possible. If circumstances prevent the mailing of the report as required in this section, the court shall provide copies of the report to the petitioner and respondent at the hearing. The report shall be noted in the order dismissing the petition or granting the restraining order.

586-11 Violation of an order for protection

Updated: 
November 13, 2018

<Laws 2008, ch. 180 amendment to subsec. (a) repealed July 1, 2010, by § 6 of that act.>

(a) Whenever an order for protection is granted pursuant to this chapter, a respondent or person to be restrained who knowingly or intentionally violates the order for protection is guilty of a misdemeanor. A person convicted under this subsection shall undergo domestic violence intervention at any available domestic violence program as ordered by the court. The court additionally shall sentence a person convicted under this subsection as follows:

(1) For a first conviction for violation of the order for protection:
(A) That is in the nature of non-domestic abuse, the person may be sentenced to a jail sentence of forty-eight hours and be fined not more than $150; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine;
(B) That is in the nature of domestic abuse, the person shall be sentenced to a mandatory minimum jail sentence of not less than forty-eight hours and be fined not less than $150 nor more than $500; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine;
(2) For a second conviction for violation of the order for protection:
(A) That is in the nature of non-domestic abuse, and occurs after a first conviction for violation of the same order that was in the nature of non-domestic abuse, the person shall be sentenced to a mandatory minimum jail sentence of not less than forty-eight hours and be fined not more than $250; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine;
(B) That is in the nature of domestic abuse, and occurs after a first conviction for violation of the same order that was in the nature of domestic abuse, the person shall be sentenced to a mandatory minimum jail sentence of not less than thirty days and be fined not less than $250 nor more than $1,000; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine;
(C) That is in the nature of non-domestic abuse, and occurs after a first conviction for violation of the same order that was in the nature of domestic abuse, the person shall be sentenced to a mandatory minimum jail sentence of not less than forty-eight hours and be fined not more than $250; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine;
(D) That is in the nature of domestic abuse, and occurs after a first conviction for violation of the same order that is in the nature of non-domestic abuse, the person shall be sentenced to a mandatory minimum jail sentence of not less than forty-eight hours and be fined not more than $150; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine;
(3) For any subsequent violation that occurs after a second conviction for violation of the same order for protection, the person shall be sentenced to a mandatory minimum jail sentence of not less than thirty days and be fined not less than $250 nor more than $1,000; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine.

Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.

The court may suspend any jail sentence under subparagraphs (1)(A) and (2)(C), upon condition that the defendant remain alcohol and drug-free, conviction-free, or complete court-ordered assessments or intervention. Nothing in this subsection shall be construed as limiting the discretion of the judge to impose additional sanctions authorized in sentencing for a misdemeanor offense. All remedies for the enforcement of judgments shall apply to this chapter.

If the court finds that the defendant has knowledge of the location of any protected party’s residence, place of employment, or school, in addition to any other penalties provided in this subsection, the court may, as a condition of probation, prohibit contact with the protected party through the establishment of court-defined geographic exclusion zones, including the areas in and around the protected party’s residence, place of employment, or school, and order that the defendant wear a global positioning satellite tracking device designed to transmit and record the defendant’s location data. If the defendant enters a court-defined geographic exclusion zone, the defendant’s location data shall be immediately transmitted to the protected party and to the police through any appropriate means, including the telephone, an electronic beeper, or a paging device. The global positioning satellite tracking device and its tracking shall be administered by the court. If a court finds that the defendant has entered a geographic exclusion zone, the court shall revoke the probation and the defendant shall be fined, imprisoned, or both, as provided in this subsection. Based on the defendant’s ability to pay, the court may also order the defendant to pay the monthly costs or portion thereof for monitoring by the global positioning satellite tracking system.

(b) Any fines collected pursuant to subsection (a) shall be deposited into the spouse and child abuse special account established under section 601-3.6.

Part II. Foreign Protective Orders

Updated: 
November 13, 2018

586-21 Foreign protective orders

Updated: 
November 13, 2018

Any valid protective order, as defined in 18 U.S.C. §2266, issued by a court or tribunal of another state, tribe, or territory of the United States shall be accorded full faith and credit by the courts of this State and shall be enforced as if it were an order issued in this State.

586-22 Valid protective order

Updated: 
November 13, 2018

(a) A protective order issued by another state, tribe, or territory shall be considered valid if:

(1) The issuing court or tribunal had jurisdiction over the parties and matter under the laws of the state, tribe, or territory; and

(2) The respondent received notice and an opportunity to be heard before the foreign protective order was issued; provided that, in the case of an ex parte order, notice and opportunity to be heard were provided within a reasonable period of time, sufficient to protect the respondent’s right to due process.

(b) Failure to provide reasonable notice and opportunity to be heard shall be an affirmative defense to any charge or process filed seeking enforcement of an out-of-state protective order.

586-23 Filing of foreign protective order

Updated: 
November 13, 2018

A certified copy of a foreign protective order, accompanied by a sworn affidavit that the order remains in effect and has not been vacated or modified, may be filed with the court; provided that no filing fee shall be required. Filing of a foreign protective order with the court shall not be required for enforcement of the foreign protective order in this State.

586-24 Enforcement of foreign protective orders

Updated: 
November 13, 2018

(a) A law enforcement officer shall enforce a foreign protective order that appears to be authentic on its face. For purposes of this section, “authentic on its face” means the protective order contains the names of both parties and remains in effect.

(b) If a paper copy of the order is unavailable and the officer verifies the existence and status of the order through a national or state centralized registry for protective orders or through communication with appropriate authorities in the issuing state, tribe, or territory, the officer shall enforce the order.

(c) A law enforcement officer shall make an arrest for a violation of a foreign protective order in the same manner as for violations of protective orders issued in this State.

586-25 Good faith immunity

Updated: 
November 13, 2018

Any law enforcement officer acting in good faith shall be immune from civil or criminal liability in any action arising in connection with enforcement of a valid foreign protective order or a foreign protective order that appears to be authentic on its face pursuant to this part.

586-26 Penalties

Updated: 
November 13, 2018

Any violation of a foreign protective order entitled to full faith and credit under this part is a misdemeanor. The court shall sentence a person convicted under this section as follows:

(1) For a first conviction for violation of the protective order, the person shall serve a mandatory minimum jail sentence of forty-eight hours but not more than thirty days and be fined not less than $150 nor more than $500; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine; and

(2) For a second and any subsequent conviction for violation of the protective order, the person shall serve a mandatory minimum jail sentence of thirty days and be fined not less than $250 nor more than $1,000; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine.

Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.

Division 4. Courts and Judicial Proceedings

Updated: 
November 13, 2018

Title 32. Courts and Court Officers

Updated: 
November 13, 2018

Chapter 604. District Courts

Updated: 
November 13, 2018

604-10.5 Power to enjoin and temporarily restrain harassment

Updated: 
November 13, 2018

(a) For the purposes of this section:

“Course of conduct” means a pattern of conduct composed of a series of acts over any period of time evidencing a continuity of purpose.

“Harassment” means:

(1) Physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault; or

(2) An intentional or knowing course of conduct directed at an individual that seriously alarms or disturbs consistently or continually bothers the individual and serves no legitimate purpose; provided that such course of conduct would cause a reasonable person to suffer emotional distress.

(b) The district courts shall have the power to enjoin, prohibit, or temporarily restrain harassment.

(c) Any person who has been subjected to harassment may petition the district court of the district in which the petitioner resides for a temporary restraining order and an injunction from further harassment.

(d) A petition for relief from harassment shall be in writing and shall allege that a past act or acts of harassment may have occurred or that threats of harassment make it probable that acts of harassment may be imminent; and shall be accompanied by an affidavit made under oath or statement made under penalty of perjury stating the specific facts and circumstances for which relief is sought.

(e) Upon petition to a district court under this section, the court may allow a petition, complaint, motion, or other document to be filed identifying the petitioner as “jane doe” or “john doe”; provided that the court finds that the “jane doe” or “john doe” filing is reasonably necessary to protect the privacy of the petitioner and will not unduly prejudice the prosecution or the defense of the action.

In considering a petition requesting a “jane doe” or “john doe” filing, the court shall weigh the petitioner’s interest in privacy against the public interest in disclosure.

The court, only after finding clear and convincing evidence that would make public inspection inconsistent with the purpose of this section, may seal from the public all documents or portions of documents, including all subsequently filed documents, that would identify the petitioner or contain sufficient information from which the petitioner’s identity could be discerned or inferred. Access to identifying information may be permitted to law enforcement or other authorized authority, in the course of conducting official business, to effectuate service, enforcement, or prosecution, or as ordered by the courts.

(f) Upon petition to a district court under this section, the court may temporarily restrain the person or persons named in the petition from harassing the petitioner upon a determination that there is probable cause to believe that a past act or acts of harassment have occurred or that a threat or threats of harassment may be imminent. The court may issue an ex parte temporary restraining order either in writing or orally; provided that oral orders shall be reduced to writing by the close of the next court day following oral issuance.

(g) A temporary restraining order that is granted under this section shall remain in effect at the discretion of the court for a period not to exceed ninety days from the date the order is granted. A hearing on the petition to enjoin harassment shall be held within fifteen days after the temporary restraining order is granted. If service of the temporary restraining order has not been effected before the date of the hearing on the petition to enjoin, the court may set a new date for the hearing; provided that the new date shall not exceed ninety days from the date the temporary restraining order was granted.

The parties named in the petition may file or give oral responses explaining, excusing, justifying, or denying the alleged act or acts of harassment. The court shall receive all evidence that is relevant at the hearing and may make independent inquiry.

If the court finds by clear and convincing evidence that harassment as defined in paragraph (1) of that definition exists, it may enjoin for no more than three years further harassment of the petitioner, or that harassment as defined in paragraph (2) of that definition exists, it shall enjoin for no more than three years further harassment of the petitioner; provided that this paragraph shall not prohibit the court from issuing other injunctions against the named parties even if the time to which the injunction applies exceeds a total of three years.

Any order issued under this section shall be served upon the respondent. For the purposes of this section, “served” shall mean actual personal service, service by certified mail, or proof that the respondent was present at the hearing at which the court orally issued the injunction.

Where service of a restraining order or injunction has been made or where the respondent is deemed to have received notice of a restraining order or injunction order, any knowing or intentional violation of the restraining order or injunction order shall subject the respondent to the provisions in subsection (i).

Any order issued shall be transmitted to the chief of police of the county in which the order is issued by way of regular mail, facsimile transmission, or other similar means of transmission.

(h) The court may grant the prevailing party in an action brought under this section costs and fees, including attorney’s fees.

(i) A knowing or intentional violation of a restraining order or injunction issued pursuant to this section is a misdemeanor. The court shall sentence a violator to appropriate counseling and shall sentence a person convicted under this section as follows:

(1) For a violation of an injunction or restraining order that occurs after a conviction for a violation of the same injunction or restraining order, the person shall be sentenced to a mandatory minimum jail sentence of not less than forty-eight hours; and

(2) For any subsequent violation that occurs after a second conviction for violation of the same injunction or restraining order, the person shall be sentenced to a mandatory minimum jail sentence of not less than thirty days.

The court may suspend any jail sentence, except for the mandatory sentences under paragraphs (1) and (2), upon appropriate conditions, such as that the defendant remain alcohol- and drug-free, conviction-free, or complete court-ordered assessments or counseling. The court may suspend the mandatory sentences under paragraphs (1) and (2) where the violation of the injunction or restraining order does not involve violence or the threat of violence. Nothing in this section shall be construed as limiting the discretion of the judge to impose additional sanctions authorized in sentencing for a misdemeanor offense.

(j) Nothing in this section shall be construed to prohibit constitutionally protected activity.

Chapter 607. Costs and Fees

Updated: 
November 13, 2018

607-2.5 Exemption of costs and fees

Updated: 
November 13, 2018

Persons subject to domestic abuse, abuse of family or household members, stalking, or sexual assault shall be exempt from paying the costs and fees prescribed in this chapter in connection with filing, issuance, registration, or service of a protection order, or a petition for a protection order, warrant, or witness subpoena issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to, another person. For purposes of this section, the term “protection order” means any temporary or final order of protection, a restraining order, or an injunction involving domestic abuse, abuse of family or household members, stalking, or sexual assault issued by a civil or criminal court, other than a support or custody order.

Title 33. Evidence

Updated: 
November 13, 2018

Chapter 621. Evidence and Witnesses, Generally

Updated: 
November 13, 2018

621-10.5 Unlawful suspension or discharge from employment; penalty; right of action

Updated: 
November 13, 2018

(a) An employer shall not deprive an employee of the employee’s employment, or threaten or otherwise coerce the employee with respect thereto, because the employee receives a summons, responds thereto, serves as a witness or attends court as a prospective witness.

(b) Any employer who violates subsection (a) is guilty of a petty misdemeanor.

(c) If an employer discharges or suspends an employee in violation of subsection (a) the employee within ninety days from the date of discharge or suspension may bring a civil action for recovery of wages lost as a result of the violation and for an order requiring the reinstatement of the employee. Damages recoverable shall not exceed lost wages for six weeks. If the employee prevails, the employee shall be allowed a reasonable attorney’s fee fixed by the court.

Division 5. Crimes and Criminal Proceedings

Updated: 
November 13, 2018

Title 37. Hawaii Penal Code

Updated: 
November 13, 2018

Chapter 701. Preliminary Provisions

Updated: 
November 13, 2018

§ 701-107. Grades and classes of offenses

Updated: 
November 19, 2018
(1) An offense defined by this Code or by any other statute of this State for which a sentence of imprisonment is authorized constitutes a crime. Crimes are of three grades: felonies, misdemeanors, and petty misdemeanors. Felonies include murder in the first and second degrees, attempted murder in the first and second degrees, and the following three classes: class A, class B, and class C.
(2) A crime is a felony if it is so designated in this Code or if persons convicted thereof may be sentenced to imprisonment for a term which is in excess of one year.
(3) A crime is a misdemeanor if it is so designated in this Code or in a statute other than this Code enacted subsequent thereto, or if it is defined in a statute other than this Code which provides for a term of imprisonment the maximum of which is one year.
(4) A crime is a petty misdemeanor if it is so designated in this Code or in a statute other than this Code enacted subsequent thereto, or if it is defined by a statute other than this Code that provides that persons convicted thereof may be sentenced to imprisonment for a term not to exceed thirty days.
(5) An offense defined by this Code or by any other statute of this State constitutes a violation if it is so designated in this Code or in the law defining the offense or if no other sentence than a fine, or fine and forfeiture or other civil penalty, is authorized upon conviction or if it is defined by a statute other than this Code which provides that the offense shall not constitute a crime. A violation does not constitute a crime, and conviction of a violation shall not give rise to any civil disability based on conviction of a criminal offense.
(6) Any offense declared by law to constitute a crime, without specification of the grade thereof or of the sentence authorized upon conviction, is a misdemeanor.
(7) An offense defined by any statute of this State other than this Code shall be classified as provided in this section and the sentence that may be imposed upon conviction thereof shall hereafter be governed by this Code.

Chapter 706. Disposition of Convicted Defendants

Updated: 
November 13, 2018

706-640. Authorized fines

Updated: 
November 19, 2018

(1) A person who has been convicted of an offense may be sentenced to pay a fine not exceeding:

(a) $50,000, when the conviction is of a class A felony, murder in the first or second degree, or attempted murder in the first or second degree;

(b) $25,000, when the conviction is of a class B felony;

(c) $10,000, when the conviction is of a class C felony;

(d) $2,000, when the conviction is of a misdemeanor;

(e) $1,000, when the conviction is of a petty misdemeanor or a violation;

(f) Any higher amount equal to double the pecuniary gain derived from the offense by the defendant;

(g) Any higher or lower amount specifically authorized by statute.

(2) Notwithstanding section 706-641, the court shall impose a mandatory fine upon any defendant convicted of theft in the first or second degree committed by receiving stolen property as set forth in section 708-830(7). The fine imposed shall be the greater of double the value of the stolen property received or $25,000 in the case of a conviction for theft in the first degree; or the greater of double the value of the stolen property received or $10,000 in the case of a conviction for theft in the second degree. The mandatory fines imposed by this subsection shall not be reduced except and only to the extent that payment of the fine prevents the defendant from making restitution to the victim of the offense, or that the defendant’s property, real or otherwise, has been forfeited under chapter 712A as a result of the same conviction for which the defendant is being fined under this subsection. Consequences for nonpayment shall be governed by section 706-644; provided that the court shall not reduce the fine under section 706-644(4) or 706-645.

706-660. Sentence of imprisonment for class B and C felonies; ordinary terms; discretionary terms

Updated: 
November 19, 2018

(1) Except as provided in subsection (2), a person who has been convicted of a class B or class C felony may be sentenced to an indeterminate term of imprisonment except as provided for in section 706-660. 1 relating to the use of firearms in certain felony offenses and section 706-606.5relating to repeat offenders. When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be as follows:

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

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

The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706-669.

(2) A person who has been convicted of a class B or class C felony for any offense under part IV of chapter 712 may be sentenced to an indeterminate term of imprisonment; provided that this subsection shall not apply to sentences imposed under sections 706-606.5, 706-660.1, 712-1240.5, 712-1240.8 as that section was in effect prior to July 1, 2016, 712-1242, 712-1245, 712-1249.5, 712-1249.6, 712-1249.7, and 712-1257.

When ordering a sentence under this subsection, the court shall impose a term of imprisonment, which shall be as follows:

(a) For a class B felony–ten years or less, but not less than five years; and

(b) For a class C felony–five years or less, but not less than one year.

The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706-669.

Chapter 707. Offenses Against the Person

Updated: 
November 13, 2018

Part III. Criminal Assaults and Related Offenses

Updated: 
November 13, 2018

707-710 Assault in the first degree

Updated: 
November 13, 2018

(1) A person commits the offense of assault in the first degree if the person intentionally or knowingly causes serious bodily injury to another person.

(2) Assault in the first degree is a class B felony.

707-711. Assault in the second degree

Updated: 
November 13, 2018

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

(a) The person intentionally, knowingly, or recklessly causes substantial bodily injury to another;

(b) The person recklessly causes serious bodily injury to another;

(c) The person intentionally or knowingly causes bodily injury to a correctional worker, as defined in section 710-1031(2), who is engaged in the performance of duty or who is within a correctional facility;

(d) The person intentionally or knowingly causes bodily injury to another with a dangerous instrument;

(e) The person intentionally or knowingly causes bodily injury to an educational worker who is engaged in the performance of duty or who is within an educational facility. For the purposes of this paragraph, “educational worker” means any administrator, specialist, counselor, teacher, or employee of the department of education or an employee of a charter school; a person who is a volunteer, as defined in section 90-1, in a school program, activity, or function that is established, sanctioned, or approved by the department of education; or a person hired by the department of education on a contractual basis and engaged in carrying out an educational function;

(f) The person intentionally or knowingly causes bodily injury to any emergency medical services provider who is engaged in the performance of duty. For the purposes of this paragraph, “emergency medical services provider” means emergency medical services personnel, as defined in section 321-222, and physicians, physician’s assistants, nurses, nurse practitioners, certified registered nurse anesthetists, respiratory therapists, laboratory technicians, radiology technicians, and social workers, providing services in the emergency room of a hospital;

(g) The person intentionally or knowingly causes bodily injury to a person employed at a state-operated or -contracted mental health facility. For the purposes of this paragraph, “a person employed at a state-operated or -contracted mental health facility” includes health care professionals as defined in section 451D-2, administrators, orderlies, security personnel, volunteers, and any other person who is engaged in the performance of a duty at a state-operated or -contracted mental health facility;

(h) The person intentionally or knowingly causes bodily injury to a person who:

(i) The defendant has been restrained from, by order of any court, including an ex parte order, contacting, threatening, or physically abusing pursuant to chapter 586; or

(ii) 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;

(i) The person intentionally or knowingly causes bodily injury to any firefighter or water safety officer who is engaged in the performance of duty. For the purposes of this paragraph, “firefighter” has the same meaning as in section 710-1012 and “water safety officer” means any public servant employed by the United States, the State, or any county as a lifeguard or person authorized to conduct water rescue or ocean safety functions;

(j) The person intentionally or knowingly causes bodily injury to a person who is engaged in the performance of duty at a health care facility as defined in section 323D-2. For purposes of this paragraph, “a person who is engaged in the performance of duty at a health care facility” shall include health care professionals as defined in section 451D-2, physician assistants, surgical assistants, advanced practice registered nurses, nurse aides, respiratory therapists, laboratory technicians, and radiology technicians;

(k) The person intentionally or knowingly causes bodily injury to a person who is engaged in providing home health care services, as defined in section 431:10H-201; or

(l) The person intentionally or knowingly causes bodily injury to a person, employed or contracted to work by a mutual benefit society, as defined in section 432:1-104, to provide case management services to an individual in a hospital, health care provider’s office, or home, while that person is engaged in the performance of those services.

(2) Assault in the second degree is a class C felony.

707-712 Assault in the third degree

Updated: 
November 13, 2018

(1) A person commits the offense of assault in the third degree if the person:

(a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or

(b) Negligently causes bodily injury to another person with a dangerous instrument.

(2) Assault in the third degree is a misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor.

707-713 Reckless endangering in the first degree

Updated: 
November 13, 2018

(1) A person commits the offense of reckless endangering in the first degree if the person employs widely dangerous means in a manner which recklessly places another person in danger of death or serious bodily injury or intentionally fires a firearm in a manner which recklessly places another person in danger of death or serious bodily injury.

(2) Reckless endangering in the first degree is a class C felony.

707-714 Reckless endangering in the second degree

Updated: 
November 13, 2018

(1) A person commits the offense of reckless endangering in the second degree if the person:

(a) Engages in conduct that recklessly places another person in danger of death or serious bodily injury; or

(b) Intentionally discharges a firearm in a populated area, in a residential area, or within the boundaries or in the direction of any road, street, or highway; provided that the provisions of this paragraph shall not apply to any person who discharges a firearm upon a target range for the purpose of the target shooting done in compliance with all laws and regulations applicable thereto.

(2) Reckless endangering in the second degree is a misdemeanor.

Part IV. Kidnapping and Related Offenses; Criminal Coercion

Updated: 
November 13, 2018

707-720 Kidnapping

Updated: 
November 13, 2018

(1) A person commits the offense of kidnapping if the person intentionally or knowingly restrains another person with intent to:

(a) Hold that person for ransom or reward;

(b) Use that person as a shield or hostage;

(c) Facilitate the commission of a felony or flight thereafter;

(d) Inflict bodily injury upon that person or subject that person to a sexual offense;

(e) Terrorize that person or a third person;

(f) Interfere with the performance of any governmental or political function; or

(g) Unlawfully obtain the labor or services of that person, regardless of whether related to the collection of a debt.

(2) Except as provided in subsection (3), kidnapping is a class A felony.

(3) In a prosecution for kidnapping, it is a defense which reduces the offense to a class B felony that the defendant voluntarily released the victim, alive and not suffering from serious or substantial bodily injury, in a safe place prior to trial.

707-721 Unlawful imprisonment in the first degree

Updated: 
November 13, 2018

(1) A person commits the offense of unlawful imprisonment in the first degree if the person knowingly restrains another person under circumstances which expose the person to the risk of serious bodily injury.

(2) Unlawful imprisonment in the first degree is a class C felony.

707-722 Unlawful imprisonment in the second degree

Updated: 
November 13, 2018

§ 707-722. Unlawful imprisonment in the second degree

Currentness

(1) A person commits the offense of unlawful imprisonment in the second degree if the person knowingly restrains another person.

(2) In any prosecution under this section, it is an affirmative defense that:

(a) The person restrained was less than eighteen years old;

(b) The defendant was a relative of the victim; and

(c) The defendant’s sole purpose was to assume custody over the victim.

In that case, the liability of the defendant, if any, is governed by section 707-727, and the defendant may be convicted undersection 707-727, although charged under this section.

(3) In any prosecution under this section, it is an affirmative defense that:

(a) The person restrained was:

(i) On or in the immediate vicinity of the premises of a retail mercantile establishment for the purpose of investigation or questioning as to the ownership of any merchandise;

(ii) Restrained in a reasonable manner and for not more than a reasonable time; and

(iii) Restrained to permit the investigation or questioning by a police officer or by the owner of the retail mercantile establishment, the owner’s authorized employee, or the owner’s agent; and

(b) The police officer, owner, employee, or agent had reasonable grounds to believe that the person detained was committing or attempting to commit theft of merchandise on the premises.

(4) Unlawful imprisonment in the second degree is a misdemeanor.

707-726. Custodial interference in the first degree

Updated: 
November 13, 2018

(1) A person commits the offense of custodial interference in the first degree if:
(a) The person:
(i) Intentionally or knowingly violates a court order issued pursuant to chapter 586, or intentionally or knowingly takes, entices, conceals, or detains the minor from any other person who has a right to custody pursuant to a court order, judgment, or decree; and
(ii) Removes the minor from the State;
(b) The person intentionally or knowingly takes, entices, conceals, or detains a minor less than eleven years old from that minor’s lawful custodian, knowing that the person had no right to do so; or
(c) The person, in the absence of a court order determining custody or visitation rights, intentionally or knowingly takes, detains, conceals, or entices away a minor with the intent to deprive another person or a public agency of their right to custody, and removes the minor from the State.
(2) It is an affirmative defense to a prosecution under this section that the person had “good cause” for the violation of a court order issued pursuant to chapter 586, for the taking, detaining, concealing, or enticing away of the minor, or for removing the minor from the State; provided that the person asserting the affirmative defense filed a report with the clerk of the family court detailing the whereabouts of the minor, the person who took, enticed, detained, concealed, or removed the minor or child, and the circumstances of the event as soon as the filing of the report was practicable; and provided further that the person asserting the affirmative defense also filed a request for a custody order as soon as the filing of the request was practicable.
As used in this section, “good cause” means a good faith and reasonable belief that the taking, detaining, concealing, enticing away, or removing of the minor is necessary to protect the minor from immediate bodily injury.
(3) The identity and address of the person reporting under subsection (2) shall remain confidential unless the information is released pursuant to a court order.
(4) Custodial interference in the first degree is a class C felony.

707-727. Custodial interference in the second degree

Updated: 
November 13, 2018

(1) A person commits the offense of custodial interference in the second degree if:
(a) The person intentionally or knowingly takes, entices, conceals, or detains a minor knowing that the person has no right to do so; or
(b) The person intentionally or knowingly takes, entices, conceals, or detains from lawful custody any incompetent person, or other person entrusted by authority of law to the custody of another person or an institution.
(2) Custodial interference in the second degree is a misdemeanor, if the minor or incompetent person is taken, enticed, concealed, or detained within the State. If the minor or incompetent person is taken, enticed, concealed, or detained outside of the State under this section, custodial interference in the second degree is a class C felony.

Part V. Sexual Offenses

Updated: 
November 13, 2018

707-730 Sexual assault in the first degree

Updated: 
November 13, 2018

(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 assault in the first degree is a class A felony.

707-731 Sexual assault in the second degree

Updated: 
November 13, 2018

(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;

(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,

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; or

(d) The person knowingly subjects to sexual penetration a minor who is at least sixteen years old and the person is contemporaneously acting in a professional capacity to instruct, advise, or supervise the minor; 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.

(2) Sexual assault in the second degree is a class B felony.

707-732 Sexual assault in the third degree

Updated: 
November 13, 2018

(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 assault in the third degree is a class C felony.

707-733. Sexual assault in the fourth degree

Updated: 
November 13, 2018

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

(a) The person knowingly subjects another person, not married to the actor, to sexual contact by compulsion or causes another person, not married to the actor, to have sexual contact with the actor by compulsion;

(b) The person knowingly exposes the person’s genitals to another person under circumstances in which the actor’s conduct is likely to alarm the other person or put the other person in fear of bodily injury;

(c) The person knowingly trespasses on property for the purpose of subjecting another person to surreptitious surveillance for the sexual gratification of the actor; or

(d) The person knowingly engages in or causes sexual contact with a minor who is at least sixteen years old and the person is contemporaneously acting in a professional capacity to instruct, advise, or supervise the minor; 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.

(2) Sexual assault in the fourth degree is a misdemeanor.

(3) Whenever a court sentences a defendant for an offense under this section, the court may order the defendant to submit to a pre-sentence mental and medical examination pursuant to section 706-603.

707-733.6. Continuous sexual assault of a minor under the age of fourteen years

Updated: 
November 13, 2018

(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 sexual assault of a minor under the age of fourteen years is a class A felony.

707-734 Indecent exposure

Updated: 
November 13, 2018

(1) A person commits the offense of indecent exposure if, the person intentionally exposes the person’s genitals to a person to whom the person is not married under circumstances in which the actor’s conduct is likely to cause affront.

(2) Indecent exposure is a petty misdemeanor.

707-741 Incest

Updated: 
November 13, 2018

(1) A person commits the offense of incest if the person commits an act of sexual penetration with another who is within the degrees of consanguinity or affinity within which marriage is prohibited.

(2) Incest is a class C felony.

Part VI. Child Abuse

Updated: 
November 13, 2018

707-750. Promoting child abuse in the first degree

Updated: 
November 13, 2018

(1) A person commits the offense of promoting child abuse in the first degree if, knowing or having reason to know its character and content, the person:

(a) Produces or participates in the preparation of child pornography;

(b) Produces or participates in the preparation of pornographic material that employs, uses, or otherwise contains a minor engaging in or assisting others to engage in sexual conduct; or

(c) Engages in a pornographic performance that employs, uses, or otherwise contains a minor engaging in or assisting others to engage in sexual conduct.

(2) As used in this section:

“Child pornography” means any pornographic visual representation, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexual conduct, if:

(a) The pornographic production of such visual representation involves the use of a minor engaging in sexual conduct; or

(b) The pornographic visual representation has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct.

“Community standards” means the standards of the State.

“Computer” shall have the same meaning as in section 708-890.

“Lascivious” means tending to incite lust, to deprave the morals in respect to sexual relations, or to produce voluptuous or lewd emotions in the average person, applying contemporary community standards.

“Material” means any printed matter, visual representation, or sound recording and includes, but is not limited to, books, magazines, motion picture films, pamphlets, newspapers, pictures, photographs, and tape or wire recordings.

“Minor” means any person less than eighteen years old.

“Performance” means any play, motion picture film, dance, or other exhibition performed before any audience.

“Pornographic” shall have the same meaning as in section 712-1210.

“Produces” means to produce, direct, manufacture, issue, publish, or advertise.

“Sadomasochistic abuse” means flagellation or torture by or upon a person as an act of sexual stimulation or gratification.

“Sexual conduct” means actual or simulated sexual intercourse, including genital-genital contact, oral-genital contact, anal-genital contact, or oral-anal contact, whether between persons of the same or opposite sex, masturbation, bestiality, sexual penetration, deviate sexual intercourse, sadomasochistic abuse, or lascivious exhibition of the genital or pubic area of a minor.

“Visual representation” refers to, but is not limited to, undeveloped film and videotape and data stored on computer disk or by electronic means that are capable of conversion into a visual image.

(3) The fact that a person engaged in the conduct specified by this section is prima facie evidence that the person engaged in that conduct with knowledge of the character and content of the material or the performance produced, directed, or participated in. The fact that the person who was employed, used, or otherwise contained in the pornographic material or performance, was at that time, a minor, is prima facie evidence that the defendant knew the person to be a minor.

(4) Promoting child abuse in the first degree is a class A felony.

707-751. Promoting child abuse in the second degree

Updated: 
November 13, 2018

(1) A person commits the offense of promoting child abuse in the second degree if, knowing or having reason to know its character and content, the person:

(a) Disseminates child pornography;

(b) Reproduces child pornography with intent to disseminate;

(c) Disseminates any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography;

(d) Disseminates any pornographic material which employs, uses, or otherwise contains a minor engaging in or assisting others to engage in sexual conduct; or

(e) Possesses thirty or more images of any form of child pornography, and the content of at least one image contains one or more of the following:

(i) A minor who is younger than the age of twelve;

(ii) Sadomasochistic abuse of a minor; or

(iii) Bestiality involving a minor.

(2) As used in this section:

“Child pornography” means any pornographic visual representation, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexual conduct, if:

(a) The pornographic production of such visual representation involves the use of a minor engaging in sexual conduct; or

(b) The pornographic visual representation has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct.

“Community standards” means the standards of the State.

“Computer” shall have the same meaning as in section 708-890.

“Disseminate” means to publish, sell, distribute, transmit, exhibit, present material, mail, ship, or transport by any means, including by computer, or to offer or agree to do the same.

“Lascivious” means tending to incite lust, to deprave the morals in respect to sexual relations, or to produce voluptuous or lewd emotions in the average person, applying contemporary community standards.

“Material” means any printed matter, visual representation, or sound recording and includes, but is not limited to, books, magazines, motion picture films, pamphlets, newspapers, pictures, photographs, and tape or wire recordings.

“Minor” means any person less than eighteen years old.

“Pornographic” shall have the same meaning as in section 712-1210.

“Sadomasochistic abuse” means flagellation or torture by or upon a person as an act of sexual stimulation or gratification.

“Sexual conduct” means actual or simulated sexual intercourse, including genital-genital contact, oral-genital contact, anal-genital contact, or oral-anal contact, whether between persons of the same or opposite sex, masturbation, bestiality, sexual penetration, deviate sexual intercourse, sadomasochistic abuse, or lascivious exhibition of the genital or pubic area of a minor.

“Visual representation” refers to, but is not limited to, undeveloped film and videotape, and data stored on computer disk or by electronic means that are capable of conversion into a visual image.

(3) The fact that a person engaged in the conduct specified by this section is prima facie evidence that the person engaged in that conduct with knowledge of the character and content of the material. The fact that the person who was employed, used, or otherwise contained in the pornographic material was at that time, a minor, is prima facie evidence that the defendant knew the person to be a minor.

(4) Promoting child abuse in the second degree is a class B felony.

707-752. Promoting child abuse in the third degree

Updated: 
November 13, 2018

(1) A person commits the offense of promoting child abuse in the third degree if, knowing or having reason to know its character and content, the person possesses:

(a) Child pornography;

(b) Any book, magazine, periodical, film, videotape, computer disk, electronically stored data, or any other material that contains an image of child pornography; or

(c) Any pornographic material that employs, uses, or otherwise contains a minor engaging in or assisting others to engage in sexual conduct.

(2) As used in this section:

“Child pornography” means any pornographic visual representation, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexual conduct, if:

(a) The pornographic production of the visual representation involves the use of a minor engaging in sexual conduct; or

(b) The pornographic visual representation has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct.

“Community standards” means the standards of the State.

“Computer” shall have the same meaning as in section 708-890.

“Lascivious” means tending to incite lust, to deprave the morals with respect to sexual relations, or to produce voluptuous or lewd emotions in the average person, applying contemporary community standards.

“Material” means any printed matter, visual representation, or sound recording and includes, but is not limited to, books, magazines, motion picture films, pamphlets, newspapers, pictures, photographs, and tape or wire recordings.

“Minor” means any person less than eighteen years old.

“Pornographic” shall have the same meaning as in section 712-1210.

“Sadomasochistic abuse” means flagellation or torture by or upon a person as an act of sexual stimulation or gratification.

“Sexual conduct” means actual or simulated sexual intercourse, including genital-genital contact, oral-genital contact, anal-genital contact, or oral-anal contact, whether between persons of the same or opposite sex, masturbation, bestiality, sexual penetration, deviate sexual intercourse, sadomasochistic abuse, or lascivious exhibition of the genital or pubic area of a minor.

“Visual representation” includes but is not limited to undeveloped film and videotape and data stored on computer disk or by electronic means that are capable of conversion into a visual image.

(3) The fact that a person engaged in the conduct specified by this section is prima facie evidence that the person engaged in that conduct with knowledge of the character and content of the material. The fact that the person who was employed, used, or otherwise contained in the pornographic material was, at that time, a minor is prima facie evidence that the defendant knew the person to be a minor.

(4) Promoting child abuse in the third degree is a class C felony.

707-756 Electronic enticement of a child in the first degree

Updated: 
November 13, 2018

(1) Any person who, using a computer or any other electronic device:

(a) Intentionally or knowingly communicates:

(i) With a minor known by the person to be under the age of eighteen years;

(ii) With another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or

(iii) With another person who represents that person to be under the age of eighteen years;

(b) With the intent to promote or facilitate the commission of a felony:

(i) That is a murder in the first or second degree;

(ii) That is a class A felony; or

(iii) That is another covered offense as defined in section 846E-1,

agrees to meet with the minor, or with another person who represents that person to be a minor under the age of eighteen years; and

(c) Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time,

is guilty of electronic enticement of a child in the first degree.

(2) Electronic enticement of a child in the first degree is a class B felony. Notwithstanding any law to the contrary, a person convicted of electronic enticement of a child in the first degree shall be sentenced to an indeterminate term of imprisonment as provided by law.

707-757 Electronic enticement of a child in the second degree

Updated: 
November 13, 2018

(1) Any person who, using a computer or any other electronic device:

(a) Intentionally or knowingly communicates:

(i) With a minor known by the person to be under the age of eighteen years;

(ii) With another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or

(iii) With another person who represents that person to be under the age of eighteen years; and

(b) With the intent to promote or facilitate the commission of a felony, agrees to meet with the minor, or with another person who represents that person to be a minor under the age of eighteen years; and

(c) Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time; is guilty of electronic enticement of a child in the second degree.

(2) Electronic enticement of a child in the second degree is a class C felony. Notwithstanding any law to the contrary, if a person sentenced under this section is sentenced to probation rather than an indeterminate term of imprisonment, the terms and conditions of probation shall include, but not be limited to, a term of imprisonment of one year.

707-759 Indecent electronic display to a child

Updated: 
November 13, 2018

(1) Any person who intentionally masturbates or intentionally exposes the genitals in a lewd or lascivious manner live over a computer online service, internet service, or local bulletin board service and who knows or should know or has reason to believe that the transmission is viewed on a computer or other electronic device by:

(a) A minor known by the person to be under the age of eighteen years;

(b) Another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or

(c) Another person who represents that person to be under the age of eighteen years,

is guilty of indecent electronic display to a child.

(2) Indecent electronic display to a child is a misdemeanor.

Chapter 708. Offenses Against Property Rights

Updated: 
November 13, 2018

Part IV. Theft and Related Offenses

Updated: 
November 13, 2018

708-839.55 Unauthorized possession of confidential personal information

Updated: 
November 13, 2018

(1) A person commits the offense of unauthorized possession of confidential personal information if that person intentionally or knowingly possesses, without authorization, any confidential personal information of another in any form, including but not limited to mail, physical documents, identification cards, or information stored in digital form.

(2) It is an affirmative defense that the person who possessed the confidential personal information of another did so under the reasonable belief that the person in possession was authorized by law or by the consent of the other person to possess the confidential personal information.

(3) Unauthorized possession of confidential personal information is a class C felony.

708-839.6 Identity theft in the first degree

Updated: 
November 13, 2018

(1) A person commits the offense of identity theft in the first degree if that person makes or causes to be made, either directly or indirectly, a transmission of any personal information of another by any oral statement, any written statement, or any statement conveyed by any electronic means, with the intent to:

(a) Facilitate the commission of a murder in any degree, a class A felony, kidnapping, unlawful imprisonment in any degree, extortion in any degree, any offense under chapter 134, criminal property damage in the first or second degree, escape in any degree, any offense under part VI of chapter 710, any offense under section 711-1103, or any offense under chapter 842; or

(b) Commit the offense of theft in the first degree from the person whose personal information is used, or from any other person or entity.

(2) Identity theft in the first degree is a class A felony.

708-839.7 Identity theft in the second degree

Updated: 
November 13, 2018

(1) A person commits the offense of identity theft in the second degree if that person makes or causes to be made, either directly or indirectly, a transmission of any personal information of another by any oral statement, any written statement, or any statement conveyed by any electronic means, with the intent to commit the offense of theft in the second degree from any person or entity.

(2) Identity theft in the second degree is a class B felony.

708-839.8 Identity theft in the third degree

Updated: 
November 13, 2018

(1) A person commits the offense of identity theft in the third degree if that person makes or causes to be made, either directly or indirectly, a transmission of any personal information of another by any oral statement, any written statement, or any statement conveyed by any electronic means, with the intent to commit the offense of theft in the third or fourth degree from any person or entity.

(2) Identity theft in the third degree is a class C felony.

Chapter 709. Offenses Against the Family and Against Incompetents

Updated: 
November 13, 2018

709-906. Abuse of family or household members; penalty

Updated: 
November 13, 2018

(1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer under subsection (4). The police, in investigating any complaint of abuse of a family or household member, upon request, may transport the abused person to a hospital or safe shelter.

For the purposes of this section:

“Business day” means any calendar day, except Saturday, Sunday, or any state holiday.

“Family or household member” :

(a) Means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons in a dating relationship as defined under section 586-1, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit; and

(b) Does not include those who are, or were, adult roommates or cohabitants only by virtue of an economic or contractual affiliation.

(2) Any police officer, with or without a warrant, may arrest a person if the officer has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member and that the person arrested is guilty thereof.

(3) A police officer who has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member shall prepare a written report.

(4) Any police officer, with or without a warrant, shall take the following course of action, regardless of whether the physical abuse or harm occurred in the officer’s presence:

(a) The police officer shall make reasonable inquiry of the family or household member upon whom the officer believes physical abuse or harm has been inflicted and other witnesses as there may be;

(b) If the person who the police officer reasonably believes to have inflicted the abuse is eighteen years of age or older, the police officer lawfully shall order the person to leave the premises for a period of separation, during which time the person shall not initiate any contact, either by telephone or in person, with the family or household member; provided that the person is allowed to enter the premises with police escort to collect any necessary personal effects. The period of separation shall commence when the order is issued and shall expire at 6:00 p.m. on the second business day following the day the order was issued; provided that the day the order is issued shall not be included in the computation of the two business days;

(c) If the person who the police officer reasonably believes to have inflicted the abuse is under the age of eighteen, the police officer may order the person to leave the premises for a period of separation, during which time the person shall not initiate any contact with the family or household member by telephone or in person; provided that the person is allowed to enter the premises with police escort to collect any necessary personal effects. The period of separation shall commence when the order is issued and shall expire at 6:00 p.m. on the second business day following the day the order was issued; provided that the day the order is issued shall not be included in the computation of the two business days. The order of separation may be amended at any time by a judge of the family court. In determining whether to order a person under the age of eighteen to leave the premises, the police officer may consider the following factors:

(i) Age of the person;

(ii) Relationship between the person and the family or household member upon whom the police officer reasonably believes the abuse has been inflicted; and

(iii) Ability and willingness of the parent, guardian, or other authorized adult to maintain custody and control over the person;

(d) All persons who are ordered to leave as stated above shall be given a written warning citation stating the date, time, and location of the warning and stating the penalties for violating the warning. A copy of the warning citation shall be retained by the police officer and attached to a written report which shall be submitted in all cases. A third copy of the warning citation shall be given to the abused person;

(e) If the person so ordered refuses to comply with the order to leave the premises or returns to the premises before the expiration of the period of separation, or if the person so ordered initiates any contact with the abused person, the person shall be placed under arrest for the purpose of preventing further physical abuse or harm to the family or household member; and

(f) The police officer shall seize all firearms and ammunition that the police officer has reasonable grounds to believe were used or threatened to be used in the commission of an offense under this section.

(5) Abuse of a family or household member and refusal to comply with the lawful order of a police officer under subsection (4) are misdemeanors and the person shall be sentenced as follows:

(a) For the first offense the person shall serve a minimum jail sentence of forty-eight hours; and

(b) For a second offense that occurs within one year of the first conviction, the person shall be termed a “repeat offender” and serve a minimum jail sentence of thirty days.

Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.

(6) Whenever a court sentences a person pursuant to subsection (5), it also shall require that the offender undergo any available domestic violence intervention programs ordered by the court. However, the court may suspend any portion of a jail sentence, except for the mandatory sentences under subsection (5)(a) and (b), upon the condition that the defendant remain arrest-free and conviction-free or complete court-ordered intervention.

(7) For a third or any subsequent offense that occurs within two years of a second or subsequent conviction, the offense shall be a class C felony.

(8) Where the physical abuse consists of intentionally or knowingly causing bodily injury by impeding the normal breathing or circulation of the blood by:

(a) Applying pressure on the throat or the neck with any part of the body or a ligature;

(b) Blocking the nose and mouth; or

(c) Applying pressure to the chest,

abuse of a family or household member is a class C felony; provided that infliction of visible bodily injury shall not be required to establish an offense under this subsection.

For the purposes of this subsection, “bodily injury” shall have the same meaning as in section 707-700.

(9) Where physical abuse occurs in the presence of a minor, as defined in section 706-606.4, and the minor is a family or household member less than fourteen years of age, abuse of a family or household member is a class C felony.

(10) Any police officer who arrests a person pursuant to this section shall not be subject to any civil or criminal liability; provided that the police officer acts in good faith, upon reasonable belief, and does not exercise unreasonable force in effecting the arrest.

(11) The family or household member who has been physically abused or harmed by another person may petition the family court, with the assistance of the prosecuting attorney of the applicable county, for a penal summons or arrest warrant to issue forthwith or may file a criminal complaint through the prosecuting attorney of the applicable county.

(12) The respondent shall be taken into custody and brought before the family court at the first possible opportunity. The court may dismiss the petition or hold the respondent in custody, subject to bail. Where the petition is not dismissed, a hearing shall be set.

(13) This section shall not operate as a bar against prosecution under any other section of this Code in lieu of prosecution for abuse of a family or household member.

(14) It shall be the duty of the prosecuting attorney of the applicable county to assist any victim under this section in the preparation of the penal summons or arrest warrant.

(15) This section shall not preclude the physically abused or harmed family or household member from pursuing any other remedy under law or in equity.(16) When a person is ordered by the court to undergo any domestic violence intervention, that person shall provide adequate proof of compliance with the court’s order. The court shall order a subsequent hearing at which the person is required to make an appearance, on a date certain, to determine whether the person has completed the ordered domestic violence intervention. The court may waive the subsequent hearing and appearance where a court officer has established that the person has completed the intervention ordered by the court.

Chapter 711. Offenses Against Public Order

Updated: 
November 13, 2018

711-1106 Harassment

Updated: 
November 13, 2018

(1) A person commits the offense of harassment if, with intent to harass, annoy, or alarm any other person, that person:

(a) Strikes, shoves, kicks, or otherwise touches another person in an offensive manner or subjects the other person to offensive physical contact;

(b) Insults, taunts, or challenges another person in a manner likely to provoke an immediate violent response or that would cause the other person to reasonably believe that the actor intends to cause bodily injury to the recipient or another or damage to the property of the recipient or another;

(c) Repeatedly makes telephone calls, facsimile transmissions, or any form of electronic communication as defined in section 711-1111(2), including electronic mail transmissions, without purpose of legitimate communication;

(d) Repeatedly makes a communication anonymously or at an extremely inconvenient hour;

(e) Repeatedly makes communications, after being advised by the person to whom the communication is directed that further communication is unwelcome; or

(f) Makes a communication using offensively coarse language that would cause the recipient to reasonably believe that the actor intends to cause bodily injury to the recipient or another or damage to the property of the recipient or another.

(2) Harassment is a petty misdemeanor.

711-1106.4 Aggravated harassment by stalking

Updated: 
November 13, 2018

(1) A person commits the offense of aggravated harassment by stalking if that person commits the offense of harassment by stalking as provided in section 711-1106.5 and has been convicted previously of harassment by stalking under section 711-1106.5 within five years of the instant offense.

(2) Aggravated harassment by stalking is a class C felony.

711-1106.5 Harassment by stalking

Updated: 
November 13, 2018

(1) A person commits the offense of harassment by stalking if, with intent to harass, annoy, or alarm another person, or in reckless disregard of the risk thereof, that person engages in a course of conduct involving pursuit, surveillance, or nonconsensual contact upon the other person on more than one occasion without legitimate purpose.

(2) A person convicted under this section may be required to undergo a counseling program as ordered by the court.

(3) For purposes of this section, “nonconsensual contact” means any contact that occurs without that individual’s consent or in disregard of that person’s express desire that the contact be avoided or discontinued. Nonconsensual contact includes direct personal visual or oral contact and contact via telephone, facsimile, or any form of electronic communication, as defined in section 711-1111(2), including electronic mail transmission.

(4) Harassment by stalking is a misdemeanor.

711-1106.6 Harassment by impersonation

Updated: 
November 13, 2018

(1) A person commits the offense of harassment by impersonation if that person poses as another person, without the express authorization of that person, and makes or causes to be made, either directly or indirectly, a transmission of any personal information of the person to another by any oral statement, any written statement, or any statement conveyed by any electronic means, with the intent to harass, annoy, or alarm any person.

(2) Harassment by impersonation is a misdemeanor.

(3) For the purposes of this section:

“Personal information” means information associated with an actual person that is a name, an address, a telephone number, or an electronic mail address.

“Pose” means to falsely represent oneself, directly or indirectly, as another person or persons.

711-1110.9. Violation of privacy in the first degree

Updated: 
November 13, 2018

(1) A person commits the offense of violation of privacy in the first degree if, except in the execution of a public duty or as authorized by law:

(a) The person intentionally or knowingly installs or uses, or both, in any private place, without consent of the person or persons entitled to privacy therein, any device for observing, recording, amplifying, or broadcasting another person in a stage of undress or sexual activity in that place; or

(b) The person knowingly discloses or threatens to disclose an image or video of another identifiable person either in the nude, as defined in section 712-1210, or engaging in sexual conduct, as defined in section 712-1210, without the consent of the depicted person, with intent to harm substantially the depicted person with respect to that person’s health, safety, business, calling, career, education, financial condition, reputation, or personal relationships or as an act of revenge or retribution; provided that:

(i) This paragraph shall not apply to images or videos of the depicted person made:

(A) When the person was voluntarily nude in public or voluntarily engaging in sexual conduct in public; or

(B) Pursuant to a voluntary commercial transaction; and

(ii) Nothing in this paragraph shall be construed to impose liability on a provider of “electronic communication service” or “remote computing service” as those terms are defined in section 803-41, for an image or video disclosed through the electronic communication service or remote computing service by another person.

(2) Violation of privacy in the first degree is a class C felony. In addition to any penalties the court may impose, the court may order the destruction of any recording made in violation of this section.

(3) Any recording or image made or disclosed in violation of this section and not destroyed pursuant to subsection (2) shall be sealed and remain confidential.

711-1111. Violation of privacy in the second degree

Updated: 
November 13, 2018

(1) A person commits the offense of violation of privacy in the second degree if, except in the execution of a public duty or as authorized by law, the person intentionally:

(a) Trespasses on property for the purpose of subjecting anyone to eavesdropping or other surveillance in a private place;

(b) Peers or peeps into a window or other opening of a dwelling or other structure adapted for sojourn or overnight accommodations for the purpose of spying on the occupant thereof or invading the privacy of another person with a lewd or unlawful purpose, under circumstances in which a reasonable person in the dwelling or other structure would not expect to be observed;

(c) Trespasses on property for the sexual gratification of the actor;

(d) Installs or uses, or both, in any private place, without consent of the person or persons entitled to privacy therein, any means or device for observing, recording, amplifying, or broadcasting sounds or events in that place other than another person in a stage of undress or sexual activity; provided that this paragraph shall not prohibit a person from making a video or audio recording or taking a photograph of a law enforcement officer while the officer is in the performance of the officer’s duties in a public place or under circumstances in which the officer has no reasonable expectation of privacy and the person is not interfering with the officer’s ability to maintain safety and control, secure crime scenes and accident sites, protect the integrity and confidentiality of investigations, and protect the public safety and order;

(e) Installs or uses outside a private place any device for hearing, recording, amplifying, or broadcasting sounds originating in that place which would not ordinarily be audible or comprehensible outside, without the consent of the person or persons entitled to privacy therein;

(f) Covertly records or broadcasts an image of another person’s intimate area underneath clothing, by use of any device, and that image is taken while that person is in a public place and without that person’s consent;

(g) Intercepts, without the consent of the sender or receiver, a message or photographic image by telephone, telegraph, letter, electronic transmission, or other means of communicating privately; but this paragraph does not apply to:

(i) Overhearing of messages through a regularly installed instrument on a telephone party line or an extension; or

(ii) Interception by the telephone company, electronic mail account provider, or telephone or electronic mail subscriber incident to enforcement of regulations limiting use of the facilities or incident to other operation and use;

(h) Divulges, without the consent of the sender or the receiver, the existence or contents of any message or photographic image by telephone, telegraph, letter, electronic transmission, or other means of communicating privately, if the accused knows that the message or photographic image was unlawfully intercepted or if the accused learned of the message or photographic image in the course of employment with an agency engaged in transmitting it; or

(i) Knowingly possesses materials created under circumstances prohibited in section 711-1110.9.

(2) This section shall not apply to any dissemination, distribution, or transfer of images subject to this section by an electronic communication service provider or remote storage service in the ordinary course of its business. For the purpose of this subsection:

“Electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system.

“Electronic communication service” means any service that provides to users thereof the ability to send or receive wire or electronic communications.

“Electronic communication service provider” means any person engaged in the offering or sale of electronic communication services to the public.

“Electronic communication system” means any wire, radio, electromagnetic, photo-optical, or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications, including e-mail, web hosting, multimedia messaging services, and remote storage services offered by an electronic communication service provider.

“Remote storage service” means the provision to the public of computer storage or processing services by means of an electronic communication system.

(3) For the purposes of this section:

“Intimate areas” means any portion of a person’s underwear, pubic area, anus, buttocks, vulva, genitals, or female breast.

“Intimate areas underneath clothing” does not include intimate areas visible through a person’s clothing or intimate areas exposed in public.

“Public place” means an area generally open to the public, regardless of whether it is privately owned, and includes but is not limited to streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, buses, tunnels, buildings, stores, and restaurants.

(4) Violation of privacy in the second degree is a misdemeanor. In addition to any penalties the court may impose, the court may order the destruction of any recording made in violation of this section.

Title 38. Procedural and Supplementary Provisions

Updated: 
November 13, 2018

Chapter 803. Arrests, Search Warrants

Updated: 
November 13, 2018

Part IV. Electronic Eavesdropping.

Updated: 
November 13, 2018

803-42 Interception, access, and disclosure of wire, oral, or electronic communications, use of pen register, trap and trace device, and mobile tracking device prohibited

Updated: 
November 13, 2018

(a) Except as otherwise specifically provided in this part, any person who:

(1) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

(2) Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any wire, oral, or electronic communication when:

(A) Such a device is affixed to, or otherwise transmits a signal through, a wire, cable, or other similar connection used in wire communication; or

(B) Such a device transmits communications by radio, or interferes with the transmission of such communication;

(3) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this part;

(4) Intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this part;

(5)(A) Intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(B) Intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage;

(6) Intentionally discloses, or attempts to disclose, to any other person the contents of any wire, oral, or electronic communication, intercepted by means authorized by subsection (b)(1), (2), or (3), or section 803-44 or 803-46; and

(A) Either:

(i) Knowing or having reason to know that the information was obtained through the interception of the communication in connection with a criminal investigation; or

(ii) Having obtained or received the information in connection with a criminal investigation; and

(B) With the intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation[;]

(7) Intentionally installs or uses a pen register or a trap and trace device without first obtaining a court order; or

(8) Intentionally installs or uses a mobile tracking device without first obtaining a search warrant or other order authorizing the installation and use of such device, unless the device is installed by or with consent of the owner of the property on which the device is installed;

shall be guilty of a class C felony.

(b)(1) It shall not be unlawful under this part for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication services, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of the officer’s, employee’s, or agent’s employment while engaged in any activity that is either a necessary incident to the rendition of the officer’s, employee’s, or agent’s service or to the protection of the rights or property of the provider of that service; provided that providers of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

(2) It shall not be unlawful under this part for an officer, employee, or agent of the Federal Communications Commission, in the normal course of the officer’s, employee’s, or agent’s employment and in discharge of the monitoring responsibilities exercised by the Commission in the enforcement of title 47, chapter 5, of the United States Code, to intercept a wire or electronic communication, or oral communication transmitted by radio, or to disclose or use the information thereby obtained.

(3)(A) It shall not be unlawful under this part for a person not acting under color of law to intercept a wire, oral, or electronic communication when the person is a party to the communication or when one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this State.

(B) It shall not be unlawful for a person acting under color of law to install in any private place, without consent of the person or persons entitled to privacy therein, any device for recording, amplifying, or broadcasting sounds or events in that place, or use of any such unauthorized installation, or install or use outside a private place any such device to intercept sounds originating in that place which would not ordinarily be audible or comprehensible outside.

(4) It shall not be unlawful under this part for a person acting under color of law to intercept a wire, oral, or electronic communication, when the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.

(5) It shall not be unlawful under this part for any person to intercept a wire, oral, or electronic communication, or to disclose or use the contents of an intercepted communication, when such interception is pursuant to a valid court order under this chapter or otherwise authorized by law; provided that a communications provider with knowledge of an interception of communications accomplished through the use of the communications provider’s facilities shall report the fact and duration of the interception to the administrative director of the courts of this State.

(6) Notwithstanding any other law to the contrary, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept or access wire, oral, or electronic communications, to conduct electronic surveillance, or to install a pen register or trap and trace device if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with:

(A) A court order directing such assistance signed by the designated judge; or

(B) A certification in writing from the Attorney General of the United States, the Deputy Attorney General of the United States, the Associate Attorney General of the United States, the attorney general of the State of Hawaii, or the prosecuting attorney for each county that no warrant or court order is required by law, that all statutory requirements have been met, and that the specific assistance is required, setting forth the period of time during which the providing of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required.

No provider of wire or electronic communication service, officer, employee, or agent thereof, or landlord, custodian, or other specified person shall disclose the existence of any access, interception, or surveillance or the device used to accomplish the interception or surveillance for which the person has been furnished a court order or certification under this part, except as may otherwise be required by legal process and then only after prior notification to the party that provided the court order or certification.

No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order or certification under this part.

(7) It shall not be unlawful under this part for any person:

(A) To intercept or access an electronic communication made through an electronic communication system configured so that the electronic communication is readily accessible to the general public.

(B) To intercept any radio communication that is transmitted:

(i) By any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress;

(ii) By any governmental, law enforcement, emergency management, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public;

(iii) By a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or

(iv) By any marine or aeronautical communications system.

(C) To engage in any conduct that:

(i) Is prohibited by section 633 of the Communications Act of 1934 (47 U.S.C. § 553); or

(ii) Is excepted from the application of section 705(a) of the Communications Act of 1934 by section 705(b) of that Act (47 U.S.C. § 605).

(D) To intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment to the extent necessary to identify the source of the interference.

(E) For other users of the same frequency to intercept any radio communication made through a system that uses frequencies monitored by individuals engaged in the providing or the use of the system, if the communication is not scrambled or encrypted.

(8) It shall not be unlawful under this part:

(A) To use a pen register or a trap and trace device as specified in this part.

(B) For a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from the fraudulent, unlawful, or abusive use of such service.

(C) For a provider of electronic or wire communication service to use a pen register or a trap and trace device for purposes relating to the operation, maintenance, and testing of the wire or electronic communication service or to the protection of the rights or property of the provider, or to the protection of users of that service from abuse of service or unlawful use of service.

(D) To use a pen register or a trap and trace device where consent of the user of the service has been obtained.

(9) Good faith reliance upon a court order shall be a complete defense to any criminal prosecution for illegal interception, disclosure, or use.

(10) Except as provided in this section, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than a communication to the person or entity or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of the communication or an agent of the addressee or intended recipient.

(11) A person or entity providing electronic communication service to the public may divulge the contents of any such communication:

(A) As otherwise authorized by a court order or under this part;

(B) With the lawful consent of the originator, addressee, or intended recipient of the communication;

(C) To a person employed or authorized, or whose facilities are used, to forward the communication to its destination;

(D) That was inadvertently obtained by the service provider and that appears to pertain to the commission of a crime, if divulged to a law enforcement agency; or

(E) To a law enforcement agency, public safety agency, or public safety answering point if the provider, in good faith, believes that an emergency involving danger of death or serious bodily injury to any person requires disclosure without delay of communications relating to the emergency, and is provided with a certification in writing from the governmental entity that provides the facts and circumstances establishing the existence of the emergency, that the specific disclosure is required, and sets forth the period of time during which the disclosure of the information is authorized and specifies the information required.

No cause of action shall lie in any court against any provider of electronic communication service, its officers, employees, or agents, custodian, or other specified person for disclosing information in accordance with the terms of a certification under this part.