§709-901 Concealing the corpse of an infant. (1) A person commits the offense of concealing the corpse of an infant if the person conceals the corpse of a new-born child with intent to conceal the fact of its birth or to prevent a determination of whether it was born dead or alive.

(2) Concealing the corpse of an infant is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §709-901

Concealing an infant corpse makes impossible the determination of whether or not criminal conduct was involved in the failure of the fetus to be born alive or in the failure of the infant to continue to live. When an infant corpse is found after it has been hidden, the decomposition of the corpse makes it impossible to determine beyond a reasonable doubt: (1) whether the fetus had been born alive before it met its death (in which case the fetus would be a "person" as that term is defined in chapter 707, which covers in part, crimes involving homicide); (2) whether, if born alive, the death resulted from murder, manslaughter, negligent homicide, or other causes; and (3) whether, if not born alive, the pregnancy was terminated by an illegal abortion. Therefore it is advisable to have a residual section making it an offense to conceal the corpse of a new-born child.

Previous Hawaii law on this subject was too restricted.[1] It seems unwise to limit the offense to cases in which the actor was the mother of the fetus or infant and in which, if born alive, the infant would be illegitimate. Although most cases of concealment might present these circumstances, it seems entirely possible that some cases might not. An infant or fetus conceived in wedlock may be concealed by its mother or some other individual. Moreover, the Code rejects limiting the offense to conduct of the mother only.

[A] limitation of coverage to the mother is unwise, since someone else may conceal the birth. Of course, if the mother and a relative or friend conspire to conceal the birth, accomplice responsibility brings the latter within the ambit of criminal law. But cases are on record in other states in which[,] without the knowledge of the mother and while she was still disoriented because of the childbirth process, relatives have taken the fetus away and concealed it. Accomplice responsibility does not arise in this case, but the need for inclusion is obvious.2

The Code enlarges the offense and eliminates restrictions in its coverage which seem clearly inconsistent with its purpose.

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§709-901 Commentary:

1. H.R.S. §768-8, which provided: "If any woman conceals the death of any issue of her body, whether born alive or not, which, if born alive, would have been illegitimate, so that it may not be known whether the issue was born alive or not, or whether it was murdered, she shall be fined not more than $100 and imprisoned at hard labor not more than two years."

2. Prop. Mich. Rev. Cr. Code, comments at 500.