§702-203 Penal liability based on an omission. Penal liability may not be based on an omission unaccompanied by action unless:

(1) The omission is expressly made a sufficient basis for penal liability by the law defining the offense; or

(2) A duty to perform the omitted act is otherwise imposed by law. [L 1972, c 9, pt of §1]

COMMENTARY ON §702-203

Penal liability based on an omission unaccompanied by action is fraught with dangers unless it is limited, as this section does, to those failures to perform a duty imposed by law--civil or penal. A voluntary omission under such circumstances will not alone suffice to establish penal liability, other elements will have to be identified and established according to the definition of, and other laws relating to, the offense charged.

Previous Hawaii law recognized a limitation more severe than that contained in this section. Liability predicated on omission only resulted from failing to do what a penal law commanded.[1] Such a limitation does not seem wise. Few duties of affirmative action are imposed by penal law. It should be sufficient for penal liability that a defendant, with the requisite culpability, failed to discharge a duty of affirmative performance imposed by civil law.

The Code is in accord with decisions in other states. For example, the owner of premises owes a duty to business invitees to maintain the premises in a reasonably safe condition. An owner who recklessly failed to provide adequate fire exits was held guilty of manslaughter when the omission caused the death of the owner's invitees.[2] Similarly, a parent, under civil law, owes a duty to provide food and shelter for his or her infant child. The intentional or reckless omission to perform the duty may result in a conviction for murder or manslaughter, respectively, if the omission causes the death of the child.3

Case Notes

Section contemplates possibility of penal liability based on an omission accompanied by, i.e., in combination with, action, as well as an omission unaccompanied by action. 73 H. 236, 831 P.2d 924 (1992).

Where evidence that child was a victim of battered child syndrome was relevant to show that child's death was not an accident, but the result of an intentional, knowing or reckless criminal act, giving rise to a duty on defendant's part to obtain medical care for child pursuant to §663-1.6, trial court did not err in admitting expert testimony that child was a victim of battered child syndrome. 101 H. 332, 68 P.3d 606 (2003).

In describing the elements of an offense based on the omission to perform a duty imposed by law under paragraph (2), the circuit court shall indicate in its instructions that the harm was caused "by" the omission to perform the relevant duty, although the question of whether the failure to do so constitutes reversible error necessarily depends, in any particular case, on an evaluation of the instructions as a whole. 77 H. 216 (App.), 883 P.2d 638 (1994).

Where jury could have reasonably found that defendant care home operator knew of the risks of infection and failed to provide resident with the care that was within defendant's capabilities, which care would have prevented the progression of the infection that caused resident's death, and defendant had a duty to take resident to follow-up appointment with doctor and consciously disregarded a substantial and unjustifiable risk that failure to perform this duty would cause resident's death, sufficient evidence to support jury's finding that State proved manslaughter by omission, including the requisite state of mind. 104 H. 387 (App.), 90 P.3d 1256 (2004).

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§702-203 Commentary:

1. H.R.S. §701-1.

2. Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944).

3. See Biddle v. Commonwealth, 206 Va. 14, 141 S.E.2d 710 (1965).