§708-812.55 Unauthorized entry in a dwelling in the first degree. (1) A person commits the offense of unauthorized entry in a dwelling in the first degree if the person intentionally or knowingly enters unlawfully into a dwelling and another person was, at the time of the entry, lawfully present in the dwelling who:
(a) Was sixty-two years of age or older;
(b) Was an incapacitated person; or
(c) Had a developmental disability.
(2) For the purposes of this section:
"Developmental disability" shall have the same meaning as in section 333E-2.
"Incapacitated person" shall have the same meaning as in section 560:5-102.
(3) Unauthorized entry in a dwelling in the first degree is a class B felony.
(4) It shall be an affirmative defense that reduces this offense to a misdemeanor that, at the time of the unlawful entry:
(a) There was a social gathering of invited guests at the dwelling the defendant entered;
(b) The defendant intended to join the social gathering as an invited guest; and
(c) The defendant had no intent to commit any unlawful act other than the entry. [L 2011, c 187, §2]
COMMENTARY ON §708-812.55
Act 187, Session Laws 2011, established the offense of unauthorized entry in a dwelling in the first degree, a class B felony, for the unauthorized entry in a dwelling if another person, at the time of entry, was lawfully present in the dwelling and the person was sixty-two years of age or older, was an incapacitated person, or had a developmental disability. The legislature found that home invasions are traumatic experiences for the victims and may be especially frightening for vulnerable elderly and disabled individuals present during the intrusion. The legislature intended that the presence of a person lawfully in the dwelling shall be a strict liability element and that it shall not be necessary to prove that a defendant knew or had any reason to know that the person lawfully in the dwelling was sixty-two years of age or older, incapacitated, or disabled. Conference Committee Report No. 32.
Law Journals and Reviews
Elder Abuse and Laws to Protect Older Persons in Hawaii. 15 HBJ, no. 13, at 93 (2013).
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