Haw. Rev. Stat. § 712-1215
HRS § 712-1215
COMMENTARY ON § 712-1215
This section has no direct counterpart in previous Hawaii law. It is derived primarily from New York Revised Penal Law §235.21 and its immediate predecessor, New York Penal Law §484(h)--(i). It is based on the State of Hawaii's role as parens patriae, and the duties and powers which attach to that role. One of the most dramatic recognitions of the state's role as parens patriae is found in the United States Supreme Court decision in Prince v. Massachussetts.[1]
The state's authority over children's activities is broader than over like actions of adults.... A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers within a broad range of selection.... It is too late now to doubt that legislation appropriately designed to reach such evils is within the state's police power....[2]
Prince v. Massachusetts affirmed the right of the state to overrule a parental prerogative for the welfare of the child. There is abundant authority, not only in the statutory law of Hawaii, but also in case law of sister states and most recently, in a decision by the United States Supreme Court, which supports the right of the state to preserve and augment the parental prerogative.
Under the present Hawaii law alcoholic beverages may not be sold to a person under 18 years of age,[3] cigarettes may not be sold to a person under 15 years of age,[4] and counties are given the option of establishing curfews for minors.[5] These laws attempt to safeguard the prerogative of the parent to decide whether his or her child of a specific age will imbibe, smoke, or stay out past a certain hour.
In regard to the regulation of dissemination of pornographic material to children, the case law is quite clear. In sustaining the state's power to enact such regulations, the New York Court of Appeals stated in Bookcase, Inc. v. Broderick,[6]
... Material which is protected for distribution to adults is not necessarily constitutionally protected from restriction upon its dissemination to children.... Because of the State's exigent interest in preventing distribution to children of objectionable material, it can exercise its power to protect the health, safety, welfare and morals of its community by barring the distribution to children of books recognized to be suitable for adults.[7]
An even more cogent recognition of the state's right, and even obligation, to reinforce the parental prerogative is illustrated by Judge Fuld's concurring opinion, People v. Kahan,[8] in which he said:
While the supervision of children's reading may best be left to their parents, the knowledge that parental control or guidance cannot always be provided and society's transcendant interest in protecting the welfare of children justify reasonable regulation of the sale of material to them.[9]
If there were any doubt remaining prior to 1968 of the constitutional validity of prohibiting the dissemination of pornography to minors as a specific class, that doubt was laid to rest by the United States Supreme Court decision in Ginsberg v. New York,[10] handed down April 22, 1968. In that decision the Supreme Court upheld the constitutional validity of New York Penal Law 484(h),[11] a law substantially similar with the proposed section.
Two aspects of § 712-1215 should be noted at the outset.
First, this provision is not limited to dissemination for monetary gain. The same approach was taken in Michigan.[12] The reason behind this was a strong feeling that the non-commercial distribution of pornographic material to minors often presented a serious problem, that only rarely did it involve parents or guardians, and that a criminal prosecution in these rare cases was unlikely.[13] To insure that § 712-1215 is not employed against parents, guardians, others in loco parentis to the minor, or siblings of the minor, subsection (2) has been provided. The United States Supreme Court has clearly implied in Ginsberg v. New York that a prohibition not limited to commercial distribution, which would put parents in jeopardy of criminal sanctions, would be invalidated. The Court pointedly noted that "the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children."[14] In light of this strong implication an adoption of the Michigan approach demands explicit exception of parents, guardians, etc., from the prohibitions of the law.
Secondly, the Code makes 16 years the appropriate age limit for minors. The choice reflects the desire of the state in its role as parens patriae to keep control over the reading matter of minors as long as is realistically feasible. The age limit is not inconsistent with the low age limits under Chapter 707; rather in that chapter, the rationale behind the choice of ages discussed in the commentary to 707-731 to 735 is primarily and necessarily the physical maturity of the female.
Section 712-1215 contains two prohibitions, each with its own specific emphasis. Subsection (1)(a) prohibits the dissemination to a minor of material which is pornographic for minors. The nature of the material falling within this prohibition is described in the definitions of "pornographic for minors" and "material" [§ 712-1210 ]. "Material" includes not only printed matter, but also records, tapes, still photographs, motion pictures, drawings, or sculptures. Such material is "pornographic" if it is primarily devoted to explicit and detailed narrative accounts of specified sexual acts between parties of the same or different sexes or contains a visual representation of naked genitalia or depicting specified sexual acts. The limiting clauses (i) and (ii) in the definition of "pornographic for minors" would exclude sex education texts, scientific texts, and most works of art or literature that are not presented in such a manner as to predominantly appeal to a minor's prurient interest or that have a redeeming social importance for minors. Obviously certain marriage manuals would not fit in this category, nor would some works of art or works of literature. By including these two specific requirements the definition clearly identifies itself with former New York Penal Law §484(h) which was validated by the United States Supreme Court in Ginsberg v. New York. Again, it should be pointed out that there is an added safety valve in § 712-1215; nothing prevents a parent from buying material for his or her child, regardless of what that material depicts or narrates.
Subsection (1)(a) would also operate against the merchant who allows a minor to page through pornographic material on display. The word "dissemination" is defined, in § 712-1210, to include an "offer to sell" and "exhibit."
Subsection (1)(b) prohibits exhibiting a pornographic motion picture film or other performance to a minor. It also prohibits selling a ticket to a minor for admission to such a movie or other performance or the actual admitting of a minor to such a movie or other performance. Thus the prohibition may reach not only the owner of a movie theater or burlesque house but also the person running the ticket booth as well as the usher who accepts the ticket and admits the minor.
Both subsections (1)(a) and (1)(b) require knowledge of the character and content of the material disseminated or the movie or other performance exhibited. The United States Supreme Court upheld similar knowledge requirements in Smith v. California.[15] Such knowledge requirements were reaffirmed most recently in the Supreme Court's Ginsberg decision.
Subsection (2) makes the promotion of pornographic material for minors a misdemeanor. A fine of $1,000 is available in addition to a one-year term of imprisonment. To the extent that the severity of a penalty has deterrent value, the misdemeanor sanction should suffice.
SUPPLEMENTAL COMMENTARY ON § 712-1215
Act 190, Session Laws 1974, amended subsection (2) by adding the words "or to a person who commits any act specified therein in his capacity as a member of the staff of any public library." The change was "to make clear that a person who, in his or her capacity as a member of a staff of a public library, disseminates to a minor, material which is subsequently held to be 'pornographic for minors' is not guilty of a penal offense." Senate Standing Committee Report No. 1072-74.
Act 283, Session Laws 1988, increased the penalty for promoting pornography to minors from a misdemeanor to a class C felony. The legislature found that it is important to keep pornography out of the hands of children, and increasing the penalty to the felony level should give pornography dealers the incentive to inquire as to the age of their customers and refuse to sell to those who are minors. Senate Standing Committee Report No. 1763, House Standing Committee Report No. 1596-88.
Act 21, Session Laws 2000, amended subsection (2) by narrowing the promoting pornography for minors exemption for public library staff to only acts committed by a staff member within the scope of the staff member's employment. The legislature found that there was no justification in continuing to provide a public library exemption beyond incidents where the staff member was acting within the scope of the staff member's employment. The legislature also found that this amendment struck a balance between providing minors with meaningful access to library materials and protecting them from exposure to pornographic materials while protecting responsible library staff members from threats of litigation. House Standing Committee Report No. 926-00, House Standing Committee Report No. 1304-00, Senate Standing Committee Report No. 2672.
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§ 712-1215 Commentary:
1. 321 U.S. 158 (1944).
2. Id. at 168-69.
3. H.R.S. § 281-4.
4. Id. § 445-212.
5. Id. § 577-21.
6. 18 N.Y.2d 71, 218 N.E.2d 668 (1966).
7. Id. at 75, 218 N.E.2d at 671.
8. 15 N.Y.2d 311, 206 N.E.2d 333 (1965).
9. Id. at 312, 206 N.E.2d 334.
10. 390 U.S. 629 (1968).
11. Now N.Y.R.P.L. §235.21.
12. Prop. Mich. Rev. Cr. Code §6310.
13. Id.
14. Ginsberg v. New York, supra.
15.361 U.S. 147 (1959).