§702-220 Ignorance or mistake of law; belief that conduct not legally prohibited. In any prosecution, it shall be an affirmative defense that the defendant engaged in the conduct or caused the result alleged under the belief that the conduct or result was not legally prohibited when the defendant acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in:

(1) A statute or other enactment;

(2) A judicial decision, opinion, or judgment;

(3) An administrative order or administrative grant of permission; or

(4) An official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration, or enforcement of the law defining the offense. [L 1972, c 9, pt of §1; am L 1973, c 136, §3(b); gen ch 1993]

COMMENTARY ON §702-220

This section deals with a special type of ignorance or mistake of law--mistaken belief by the defendant that the defendant's conduct is not legally prohibited by the penal law. It must, in most instances, be held that such a mistaken belief will afford no excuse because recognition of this defense would allow each individual to define the limits of application of a penal statute by claiming that, because of the individual's ignorance or mistake, the proscription of the statute is not applicable to the individual.

Just as a judgment of criminality cannot be imposed unless the conduct in question has been defined as criminal, so, once the conduct has been so defined, one cannot usurp the lawmaking function by pleading that his ignorance must mean that the conduct is not criminal as to him. That doctrine is just, so long as the behavior content of the criminal law is coterminous with the knowledge that a member of the community may be expected to have about the limits of tolerable behavior. But, in fact, the criminal law has been indiscriminately employed to proscribe conduct that does not carry its own warning of illegality.... Nonetheless, ... [the first offender] has no defense under prevailing law. Therein resides a major dilemma.[1]

In order to avoid manifest injustice, the Code allows a limited affirmative defense in certain cases.

The defense is afforded where the defendant acts in reasonable reliance on an official statement of the law afterwards determined to be erroneous. In such cases the defendant's conduct is consistent with law-abidingness. Moreover, notwithstanding the fact that official statements of the law must sometime be overruled, no social purpose would be served by discouraging reasonable reliance on them while they stand. Certainly penal liability for such reasonable reliance is inconsistent with the concept of culpability which permeates this Code.

Hawaii has recognized the doctrine that the defendant will not be afforded a defense based on the defendant's ignorance that the defendant's conduct is prohibited by the penal law.[2] The limited defense afforded by this section of the Code has not previously been available; it has however been adopted or proposed in other states.3

SUPPLEMENTAL COMMENTARY ON §702-220

Section 220 of the Proposed Draft of the Code had provided for an affirmative defense when "the statute or other enactment defining the offense is not known to the defendant and has not been reasonably made available to him, by publication or otherwise, prior to the conduct or result alleged." This affirmative defense, based on obscure publication or unavailability of the content of the penal law, was deleted by the legislature for the reasons set forth in Conference Committee Report No. 2 (1972), the relevant portion of which is quoted in the Supplemental Commentary on §702-218.

Case Notes

In State v. Marley, 54 H. 450, 476-477, 509 P.2d 1095, 1111-1112 (1973), the court recognized mistake of law as a defense. The court said: "It is true that reasonable mistake of law is often a complete defense to the charge of criminality for an act when the mistake of law negatives a mental state which must be shown to establish a material element of the crime.... Therefore, defendants' 'honest' and 'reasonable' belief that they had a right or duty to be present on Honeywell property, in that they had a defense assertable under American treaty law--no matter how incorrect such a belief might be--would have exonerated defendants by negativing the mental state that is an essential element of the crime. Instruction 24, supra, given by the court enunciated the gist of this defense. The jury could have acquitted the defendants on this instruction, even though defendants disclaimed any reliance on a 'mistake' of law justification defense. The jury chose not to do so".

As 911 telephone operator not the public officer or body charged by law with responsibility for interpretation, administration, or enforcement of the law defining the offense, paragraph (4) affirmative defense not applicable. 81 H. 147 (App.), 913 P.2d 558 (1996).

__________

§702-220 Commentary:

1. Packer, The Model Penal Code and Beyond, 63 Colum. L. Rev. 594, 596-597 (1963); see also Hall, General Principles of Criminal Law 382-387 (2d ed. 1960).

2. Republic v. Akau, 11 Haw. 363 (1898).

3. Ill. Cr. Code §4-8; Prop. Del. Cr. Code §251.