§702-234 Consent to bodily injury. In any prosecution involving conduct which causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if:
(1) The conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic event or competitive sport; or
(2) The consent establishes a justification for the conduct under chapter 703. [L 1972, c 9, pt of §1]
COMMENTARY ON §702-234
This section specifies the types of cases in which consent to conduct which threatens or causes physical injury will constitute a defense.
Where the conduct and injury are the reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport, the injury to one participant, whether it be deliberate (boxing) or fortuitous (basketball or football), should not import penal liability to the other party.
Subsection (2) permits effective consent when it is given in the context of a situation which would constitute a defense of justification under chapter 703. For example, a parent may intrust the care of a child to another person, thus, under some circumstances, consenting to the use of corporal punishment, which would be sufficient to establish justification for the use of moderate physical force. Again, an adult might submit to certain medical procedures which necessarily entail severe bodily injury.
Consent to bodily harm has not been dealt with in previous Hawaii penal law.1
SUPPLEMENTAL COMMENTARY ON §702-234
Section 234 in the Proposed Draft of the Code provided for a defense, in addition to the above text, where "the bodily injury consented to or threatened by the conduct consented to is not serious." The legislature, in enacting the Code in 1972, rejected this defense. Conference Committee Report No. 2 (1972) stated: "The Committee finds that the law should not permit the defense of consent to have such a broad application... and that the subsection should not permit, by consent, the type of conduct which would result in bodily injury and disruption of our social fabric."
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§702-234 Commentary:
1. But see Burrows v. Hawaiian Trust Co., 49 Haw. 351, 360, 417 P.2d 816, 821 (1966) ("Consent is a defense to assault and battery cases as well as to others, unless consent is against the policy of the law.").
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