§712-1231 Social gambling; definition and specific conditions, affirmative defense. (a) Definition. "Social gambling" means gambling in which all of the following conditions are present:

(1) Players compete on equal terms with each other; and

(2) No player receives, or becomes entitled to receive, anything of value or any profit, directly or indirectly, other than the player's personal gambling winnings; and

(3) No other person, corporation, unincorporated association, or entity receives or becomes entitled to receive, anything of value or any profit, directly or indirectly, from any source, including but not limited to permitting the use of premises, supplying refreshments, food, drinks, service, lodging or entertainment; and

(4) It is not conducted or played in or at a hotel, motel, bar, nightclub, cocktail lounge, restaurant, massage parlor, billiard parlor, or any business establishment of any kind, public parks, public buildings, public beaches, school grounds, churches or any other public area; and

(5) None of the players is below the age of majority; and

(6) The gambling activity is not bookmaking.

(b) Affirmative defense:

(1) In any prosecution for an offense described in [section] 712-1223, 712-1224, 712-1225 or 712-1226, a defendant may assert the affirmative defense that the gambling activity in question was a social gambling game as defined in [section] 712-1231(a).

(2) If the defendant asserts the affirmative defense, the defendant shall have the burden of going forward with evidence to prove the facts constituting such defense unless such facts are supplied by the testimony of the prosecuting witness or circumstance in such testimony, and of proving such facts by a preponderance of evidence.

(c) In any prosecution for an offense described in this part the fact that the gambling activity involved was other than a social gambling game shall not be an element of the offense to be proved by the prosecution in making out its prima facie case. [L 1973, c 201, pt of §1; gen ch 1993]

COMMENTARY ON §712-1231

Section 712-1231 is a completely new and rewritten section set forth by Act 201, Session Laws 1973. This section defines "social gambling" as gambling activity that meets all the prescribed conditions. These conditions are: (1) that all players engage as contestants on "equal terms"; (2) that no profiting be involved--other than the player's winnings; (3) that it should not be conducted at certain enumerated places, such as hotels, school grounds, public parks, any business establishment, etc.; (4) that no minor be involved in the game; and (5) that the gambling activity is not bookmaking. (Senate Standing Committee Report No. 806 (1973).)

With respect to the concept of prohibiting gambling in enumerated places, the Standing Committee Report states:

Your Committee notes the addition of the concept that gambling in certain enumerated places such as hotels, public parks, etc.-- is prohibited and that gambling conducted in such places is not to come within the protected confines of 'social gambling.' It is felt that this addition to the law clarifies the legislature's intent to prevent the intrusion of hotel and casino type operations into this State, as well as prevent exposure of gambling to children in public parks, school grounds, etc.

In this connection, casual gambling activities in a social context, involving contests of skill, and conducted in places other than those enumerated in the law, such as casual bets between golfers or bowlers would be "social gambling".

Section 712-1231 provides that in any prosecution for an offense described in §712-1223, 1224, 1225, or 1226, the defendant may assert the affirmative defense that the gambling activity was a social gambling game as defined in this section. In respect thereto, the Standing Committee Report No. 806 (1973), Senate Judiciary Committee, states:

There has been considerable concern whether the affirmative defense provisions of the Hawaii Penal Code are constitutional. In that regard, your Committee understands that statutorily prescribed affirmative defenses have been held constitutional. See Territory of Hawaii v. Shizuichi Yamamoto, et. al., 39 Haw. 556 (1952); McKelvey v. United States, 260 U.S. 353 (1922); United States v. Sidney B. Rowlette, et. al., 297 F.2d 475 (1968); and U.S. v. Carl Oslin Rumzy, Jr. 446 F.2d 1184 (1971).

A major change affected is the erasure of any mandatory requirement that the defendant utilize this affirmative defense. We note that this is an area of great concern. That is, whether the affirmative defense in the existing law forces the defendant, as a legal requirement, to testify in potential self-incrimination.

Without addressing ourselves to any other application of the affirmative defense in the Hawaii Penal Code, your Committee notes the existing law was to provide in §712-1231(b) that a defendant's resort to the affirmative defense is discretionary. See People v. Felder, 334 N.Y.S. 2d 992 (1972).

There appears to be some confusion as to the prosecutor's burden of proof in relation to the defense of social gambling. It is intended that the prosecution should not have the burden of proving as part of its prima facie case, that the gambling activity in question was other than a social gambling game. Accordingly, an explicit statement to that effect was included in §712-1231(c).

In contrast, it is the intent that the defendant shall be entitled to acquittal on the basis of the affirmative defense only if the trier of the facts finds by a preponderance of the evidence the facts constituting the affirmative defense. In other words, the defendant has both the burden of going forward with the evidence and the burden of persuasion by a preponderance of evidence with respect to the affirmative defense of social gambling.

Case Notes

Defendants did not prove that no person other than players received or became entitled to receive anything of value. 2 H. App. 606, 638 P.2d 338 (1981).

Although it may have been error admitting into evidence, as expert opinion under HRE rule 702, officer's testimony concerning subsection (b), the social gambling defense, where defendant was not entitled to this defense in a prosecution for promoting gambling in the first degree under §712-1221(1)(c), error was harmless. 92 H. 98 (App.), 987 P.2d 996 (1999).