§702-210 Requirement of wilfulness satisfied by acting knowingly. A requirement that an offense be committed wilfully is satisfied if a person acts knowingly with respect to the elements of the offense, unless a purpose to impose further requirements appears. [L 1972, c 9, pt of §1]

COMMENTARY ON §702-210

Many regulatory penal offenses appear in statutes other than the Penal Code. These regulatory statutes often employ different words to designate the state of mind or culpability requirement needed to establish various regulatory offenses. In this respect the penal statutes dealing with regulatory offenses are much the same as those appearing in the previous Title on crimes.[1] While no attempt will be made to correlate the present culpability requirements of regulatory offenses with the four states of mind which the Code recognizes as sufficient to establish culpability with respect to the elements of an offense, an exception is made for the word "wilful" or "wilfully."

That term is used pervasively in penal statutes to describe the requisite culpability or state of mind. However, the phrase has been defined differently in similar contexts. For example, it has been held that the felony of wilfully failing to account for and to pay over tax monies requires "bad purpose and evil motive," whereas, the misdemeanor of wilfully failing to file an income tax return requires that the defendant acted "with bad purpose or without grounds for believing that one's act is lawful or without reasonable cause, or capriciously or with careless disregard whether one has the right to so act."[2] With respect to the same misdemeanor, it has been said that "[m]ere voluntary and purposeful, as distinguished from accidental, omission to make timely return might meet the test of wilfulness."[3]

In a Hawaii case, involving a disputed labor contract, the court, in discussing the penal remedies afforded to the employer by then existing law, said that a wilful absence was "one without sufficient legal excuse"[4]--a rather transparent definition at best.

To eliminate distinctions of this type, the Code equates acting wilfully with acting knowingly. This equation reaches a result in accord with most decisions. The Code recognizes, however, that in some situations the courts have construed "wilful" to impose an additional requirement of culpability. In such situations the "perception of such a ... [legislative] purpose [to impose additional culpability requirements] normally derives, of course, from judicial appraisal of the consequences of the enactment if its scope is not limited by construction."5 To allow for situations of this kind, the final clause provides that the section is not applicable if a purpose to impose further culpability requirements appears.

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§702-210 Commentary:

1. Cf. Commentary on §702-204.

2. Abdul v. United States, 254 F.2d 292, 294 (1958); Martin v. United States, 317 F.2d 753 (1963).

3. Spies v. United States, 317 U.S. 492, 498, 63 S.Ct. 364, 367, 87 L.Ed. 418 (1943).

4. Rickard v. Couto, 5 Haw. 507, 513 (1885).

5. M.P.C., Tentative Draft No. 4, comments at 130 (1955). See Screws v. United States, 325 U.S. 91 (1945) (holding that a statute making it an offense to wilfully deprive a person of rights secured by the Constitution required, when applied to rights secured through the due process clause, a specific intent to deprive the person of a right which has been made specific by the express terms of Constitution, the laws of the United States, or by a decision interpreting them), and United States v. Murdock, 290 U.S. 389 (1933) (holding that a tax statute making it an offense to wilfully fail to supply information to the government regarding income tax returns did not make criminal the bona fide, albeit intentional and erroneous, refusal to answer on the ground of self-incrimination).