§702-224 Liability for conduct of another; exemption from complicity. Unless otherwise provided by this Code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if:

(1) He is a victim of that offense;

(2) The offense is so defined that his conduct is inevitably incident to its commission; or

(3) He terminates his complicity prior to the commission of the offense and:

(a) Wholly deprives his complicity of effectiveness in the commission of the offense; or

(b) Gives timely warning to the law enforcement authorities or otherwise makes reasonable effort to prevent the commission of the offense. [L 1972, c 9, pt of §1]

Revision Note

In paragraph (1), "or" deleted pursuant to §23G-15.

COMMENTARY ON §702-224

This section sets forth obvious exceptions which must be made to the provisions relating to complicity.

Even though a victim of an offense in a limited sense assists its commission, it seems clear that the victim ought not to be regarded as an accomplice. For example, the business person who yields to extortion ought not be regarded as an accomplice of the extortionist. Similarly it would be unwise to regard parents who yield to the threat of kidnappers and clandestinely pay a ransom as accomplices in the commission of the crime.

Other parties who participate in the commission of an offense and who cannot logically be called victims of the crime raise problems which call for exclusion from the category of "accomplice." In those cases where the commission of an offense necessarily involves the conduct of two persons, it is questionable wisdom to push the concept of complicity to its outer limits. In the case of an illegal abortion, it is questionable whether a woman ought to be deemed the accomplice of the abortionist when an abortion is performed upon her. Similar questions might be raised about the complicity of a patron of a prostitute or the complicity of the purchaser in an illegal sale. In such cases, if general rules hitherto stated were to control, prosecutorial rather than legislative discretion would determine how diverse situations should be handled and the treatment the individuals involved should receive. The exemption established by subsection (2) will leave to the legislature the determination of what distinctions, if any, ought to be made.

Subsection (3) seeks to relieve a person of liability based on the person's complicity if the reason for its imposition no longer obtains. Thus, if the accomplice deprives the accomplice's action of effectiveness before the offense is committed, the accomplice should not be accountable for the conduct of another. What the erstwhile accomplice must do to relieve the accomplice of potential liability will vary depending on the conduct that establishes the accomplice's complicity. More will be required of one who distributes arms than one who offers verbal encouragement.

Hawaii has recognized in at least one case that the victim of a crime will not be regarded as an accomplice of the defendant.[1] Although two cases in Hawaii have referred to apparent partners in acts of sodomy as "accomplices,"[2] which would be contrary to subsection (2) of the Code, the result is without significance because each "accomplice" would have been liable for the same offense on the basis of the accomplice's own conduct. Subsection (3) is substantially in accord with prior law.3

__________

§702-224 Commentary:

1. Re Habeas Corpus, Balucan, 44 Haw. 271, 353 P.2d 631 (1960) (victim in a case involving a charge of sexual intercourse with a female under the age of sixteen may not refuse to testify concerning the incident on the basis of self-incrimination because she cannot be prosecuted on the charge).

2. Republic v. Luning, 11 Haw. 390 (1898) (dictum).

3. H.R.S. §702-13.