A Review Of Hawaii's Domestic And Abuse Laws
Senate Concurrent Resolution No. 184 (1999) charged the Bureau with making recommendations for a recodification of Hawaii’s domestic violence and abuse laws as necessary to enhance victim protection and provide for uniformity and consistency in these laws. The Bureau makes the following recommendations:
(1) Undertake an extensive rewrite of chapter 586, Hawaii Revised Statutes (domestic abuse protective orders), as detailed in Chapter 2, that, among other things, would:
(a) Include "dating relationship" within the definition of "family or household member";
(b) Extend the effective period of a protective order;
(c) Conform the penalties for violation of a protective order with those for violation of a temporary restraining order; and
(d) Add new statutory sections to ensure full faith and credit of foreign protective orders in compliance with federal law.
(2) Maintain the authority to obtain a protective order under section 580-10(d), Hawaii Revised Statutes, in proceedings for annulment, divorce, or separation, but require that it comply with the requirements of chapter 586, as detailed in Chapter 3;
(3) Restructure section 709-906, Hawaii Revised Statutes (abuse of family and household members), into a new part to chapter 709, as detailed in Chapter 4, that includes:
(a) Creation of a first (class C felony), second (misdemeanor), and third (petty misdemeanor) degree of the offense of abuse of family or household member;
(b) Authorization for a police officer to order a period of separation if the officer has reasonable grounds to believe abuse may be imminent;
(c) Creation of an enhanced sentencing provision for other felonies involving family or household members; and
(d) Inclusion of the class C felony abuse of family or household member in the repeat offender statute.
(4) Make conforming amendments, as detailed in Chapter 5, to:
(a) Section 604-10.5, Hawaii Revised Statutes (harassment), if the Legislature does not include "dating relationship" within the definition of "family or household member"; and
(b) Section 134-7(f). Several of those representing the departments, agencies, and organizations with whom the Resolution requested the Bureau to consult expressed viewpoints conflicting with the Bureau’s foregoing recommendations. Accordingly, the Bureau, where appropriate, has included in the Study alternative proposed statutory language to accommodate these viewpoints.
II. Frequently Asked Questions
Answer: No. Because of time constraints in completing this study, the Bureau limited the scope of the review of protective orders to those primarily viewed as relating to "domestic abuse" versus, for example, child abuse. Therefore, the study addresses protective orders found in: chapter 586, Hawaii Revised Statutes (domestic abuse protective orders); section 580-10(d), Hawaii Revised Statutes, providing for restraining orders in connection with the filing of a complaint for annulment, divorce, or separation, to prevent physical abuse, threats, or harassment; and section 604-10.5, Hawaii Revised Statutes, authorizing restraining orders to prevent harassment.
Answer: No. The Bureau proposes statutory language in the Study that would promote uniformity and consistency between the various domestic abuse protective orders, but concludes that there are cogent reasons for maintaining separate protective order provisions.
Answer: Possibly, if one relies upon a narrow sense of the term "recodification". (A review of four standard dictionaries and one law dictionary failed to discover any actual definition of the term "recodification".) However, given the volume of bills regularly introduced each legislative session to address problems relating to domestic violence and abuse laws or to strengthen their protections (over 100 such bills were introduced during the 1999 regular session alone), the Bureau believes it would be remiss in its duty to the Legislature if it submitted only a nonsubstantive rearrangement of statutory sections. Furthermore, discussions with legislative staff members indicated that a number of substantive bills relating to domestic abuse issues were held in committee to await the outcome of the Bureau’s Study. Such action hardly indicates that the Legislature expects a study merely recommending a nonsubstantive rearrangement of statutory sections. In addition, the Resolution, taken in its entirety, makes clear the Legislature’s intent that the Bureau conduct a "thorough review" of Hawaii’s domestic violence and abuse laws to identify the "pukas", loopholes, and inconsistencies that prevent women and children from receiving the protection these laws are intended to afford. Consequently, in conducting this study, the Bureau focused more upon the Resolution’s phrasing "as necessary to enhance victim protection and provide for uniformity and consistency" in Hawaii’s domestic violence and abuse laws, than upon the single reference to recodification. Moreover, the Bureau notes that it would be difficult, if not impossible, to make recommendations to enhance victim protection and provide for uniformity and consistency without making substantive recommendations. Finally, the Bureau notes that that these are proposed statutory recommendations submitted by the Bureau at the request of the Legislature, which is free to take whatever action with respect to them that it deems advisable, including ignoring them.
Answer: No. Time constraints prevented a more thorough review of the issue; however, the Bureau included the proposed sections, based upon a proposed model act, to provide some minimal recognition that foreign protective orders are entitled to full faith and credit under Hawaii law. These provisions presently are under review by staff members of the Full Faith and Credit Project, Pennsylvania Coalition Against Domestic Violence. Their input may provide more effective language than that proposed in the Study.
Answer: Yes, the study addresses the issue of bail amounts set for domestic violence cases (including abuse of family or household member cases and violations of protective orders); however, it does not recommend any statutory amendments with respect to the issue of bail.