Monthly Archives: May 2012

On April 30, 2012, Governor Neil Abercrombie signed Senate Bill 2247, Senate Draft 2, House Draft 1, which became law as Act 094 on 4/30/2012 (Gov. Msg. No. 1195).  We inserted language from a bill in our 2012 Honolulu Prosecuting Attorney legislative package into Senate Bill 2247.

This law allows electronic communication service providers to divulge the contents of a communication to law enforcement agencies, public safety agencies, and public safety answering points when there is an emergency involving danger of death or serious bodily injury to any person.

On April 24, 2012, Governor Neil Abercrombie signed House Bill 1772 into law as Act 59.  This bill is part of the 2012 Honolulu Prosecuting Attorney legislative package, which corrects “violation of privacy in the second degree” under section 711-1111, Hawaii Revised Statutes.

In 1999, the legislature created the offense of privacy in the first degree that included a penalty of class C felony under section 711-1110.9, Hawaii Revised Statutes, where one conducts a surveillance of another person in a stage of undress or sexual activity.  The legislature exluded surveillance of another person in a stage of undress or sexual activity for the offense of violation of privacy in the second degree under section 711-1111, Hawaii Revised Statutes, and the penalty for this section is a misdemeanor.

In 2006, the legislature in a criminal omnibus bill, accidentally removed language in the offense of violation of privacy in the second degree under section 711-1111, Hawaii Revised Statutes, that excluded surveillance of another person in a stage of undress or sexual activity, thus making the language the same as the offense of privacy in the first degree under section 711-1110.9, Hawaii Revised Statutes.  Since both sections have the same type of language, case law requires us to charge the lesser charge of privacy in the second degree under section 711-1111, Hawaii Revised Statutes when the facts is about a person who surveils another person in a stage of undress or sexual activity because charging the higher offense would violate due process and the equal protection of the laws.  In State v. Modica, 58 Haw. 249, 567 P.2d 420 (1977), the Supreme Court of Hawaii noted, “where the same act committed under the same circumstances is punishable either as a felony or as a misdemeanor, under either of two statutory provisions, and the elements of proof essential to either conviction are exactly the same, a conviction under the felony statute would constitute a violation of the defendant’s rights to due process and the equal protection of the laws.”