§702-233 Consent; general. In any prosecution, the victim's consent to the conduct alleged, or to the result thereof, is a defense if the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense. [L 1972, c 9, pt of §1]
COMMENTARY ON §702-233
This section states the general view that the victim's consent to the defendant's conduct, or to the result of the defendant's conduct, is a defense if it negatives an element of the offense (e.g., consent to sexual intercourse on charge of rape) or precludes the harm or evil sought to be prevented by the law defining the offense (e.g., consent by the victim to allow the defendant to demonstrate a wrestling hold or maneuver upon the victim). It is obvious that this general principle should not be extended to all types of evils or harms and therefore this section is intended to be read in conjunction with §702-234 (consent to bodily injury) and §702-235 (ineffective consent).
Although this general principle has not been previously codified in Hawaii, it has been impliedly recognized.1
Case Notes
Based on the facts and the charged offenses in the case, the alternative theories of absence of consent and ineffective consent did not represent separate crimes; rather, they were alternative means of proving the attendant circumstance element of a single crime. 96 H. 161, 29 P.3d 351 (2001).
In sexual assault case, jury instruction as to ineffective consent prejudicially affected defendant's rights to due process because (1) jury was instructed that it could convict defendant based on the absence of consent under this section or any of the four grounds of ineffective consent under §702-235, (2) there was a reasonable possibility that the verdict was based on at least one of the four grounds of ineffective consent, and (3) there was legally insufficient evidence to support any of the four grounds of ineffective consent presented to the jury. 96 H. 161, 29 P.3d 351 (2001).
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§702-233 Commentary:
1. Territory v. Lee, 29 Haw. 30 (1926) (where a bank teller mistakenly paid out too much money on a check, it was held that the teller's mistake was not "consent" to the taking which would afford a defense to a charge of larceny).
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