§702-200 Requirement of voluntary act or voluntary omission. (1) In any prosecution it is a defense that the conduct alleged does not include a voluntary act or the voluntary omission to perform an act of which the defendant is physically capable.

(2) Where the defense provided in subsection (1) is based on a physical or mental disease, disorder, or defect which precludes or impairs a voluntary act or a voluntary omission, the defense shall be treated exclusively according to chapter 704, except that a defense based on intoxication which is pathological or not self-induced which precludes or impairs a voluntary act or a voluntary omission shall be treated exclusively according to this chapter. [L 1972, c 9, pt of §1; am L 1986, c 325, §1]

Cross References

Physical or mental disease, disorder, or defect excluding penal responsibility, see §704-400.

COMMENTARY ON §702-200

The effect of this section is to require, as a minimum basis for the imposition of penal liability, conduct which includes a voluntary act or voluntary omission. In most penal cases the issue of whether the defendant's conduct includes a voluntary act or a voluntary omission will not be separately litigated. The voluntariness of relevant acts or omissions will be evident. The Code, by making the issue of involuntariness a defense, accordingly puts the ultimate burden on the defendant to inject that issue into the case. The burden, of course, can be met by the prosecutor if he raises the issue. Once the question of voluntariness has been raised, the prosecution has the burden of proving that issue beyond a reasonable doubt.

A voluntary act or omission will not, of course, be sufficient alone to impose penal liability. If, however, the issue of voluntariness is raised, such an act or omission must be established if penal liability is to obtain. Statutory law cannot hope to command or deter acts over which the accused has no control. Moreover, any attempt at moral condemnation of involuntary acts or omissions through the use of the penal sanction would ultimately disserve the integrity of the penal law.

The direct effect of this section is to preclude "status crimes"--the most obvious of which is vagrancy. Since the impoverished condition of the accused would not, without more, constitute or include a voluntary act or omission, conviction would be precluded.

The formulation of this section is intended to permit liability in those cases where liability is not predicated on a voluntary act or omission but on a course of conduct initiated by a voluntary act. Thus, an automobile driver who suddenly loses consciousness and kills a pedestrian would not have performed a voluntary act giving rise to liability. However, if the driver had disregarded a known risk that consciousness might be lost and had commenced or continued driving, that included a voluntary act might be sufficient to impose penal liability.

The prior Hawaii statutory law[1] is similar to this section but its logical implication with regard to status crimes has not been examined as carefully as might have been hoped. While being a vagrant was unlawful, being a leper was not.2

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§702-200 Commentary:

1. H.R.S. §701-1 ("doing what a penal law forbids to be done, or omitting to do what it commands").

2. Segregation of Lepers, 5 Haw. 162 (1884).