Hawaii Prohibited Consensual Sexual Activity Laws

Most sex crimes involve nonconsensual sexual contact. But most states also have laws banning certain types of consensual sexual activity. For example, if an adult is in a sexual relationship with someone underage, the state can charge them with statutory rape. The police can also arrest you for having sex in a public place.

Although these laws may involve consenting partners, many focus on whether one of the parties is below the age of consent, which in the State of Hawaii is 16 years old.

Here, we'll discuss Hawaii's consensual sex laws, as well as the penalties and possible defenses for these offenses.

History of Prohibiting Consensual Sexual Activity

Although people today may think consensual sexual activity laws are antiquated, American lawmakers have a long history of prohibiting various forms of consensual sexual activity. Many of these laws targeted homosexuals. For example, most states passed sodomy laws to punish homosexual sex between males.

Most states have repealed or struck down anti-homosexuality and anti-sodomy laws voluntarily. But in 2003, the U.S. Supreme Court heard a case titled Lawrence v. Texas, in which it struck down a Texas law that banned homosexual acts as unconstitutional.

As a result of the decision in that case, 13 states repealed their anti-sodomy laws. But this decision did not put an end to all laws banning consensual sexual activity.

What Sexual Acts Do These Laws Apply To?

Every state has laws prohibiting specific consensual sexual conduct. For example, every state (including Nevada) has laws prohibiting prostitution and solicitation for prostitution. The same is true for public indecency.

Some of the sexual acts these laws target include:

  • Sodomy
  • Adultery
  • Incest
  • Obscenity
  • Prostitution

Most states no longer enforce some of these laws. For example, law enforcement would rarely arrest someone for committing adultery. This is because most people view these acts as harmless. If both parties consent to the activity, who is the state to tell them not to do it?

Hawaii, like most other states, has laws prohibiting or limiting citizens' engagement in the above-mentioned consensual sex acts. These laws fall under the legal umbrella of sex crimes in Hawaii.

Does Hawaii Have a Close-in-Age Exemption for Statutory Rape?

Many states, including Hawaii, have close-in-age exemptions or "Romeo and Juliet" laws. According to Hawaii law, it's not unlawful to have sex with someone 14-15 years old as long as you are less than five years older than the other person.

For example, a 17-year-old guy living in Honolulu is dating a girl who is only 15 years of age. The two have been together for several months. The girl's parents learn of the relationship and contact the police. They want the law enforcement officer to arrest the boy and charge him with statutory rape.

In this case, the boyfriend's attorney will likely be able to get an acquittal, given that there is less than a five-year age difference between their client and his girlfriend. If the defendant were 21, the court would deny the applicability of the close-in-age exemption.

The sex between the two parties must be consensual for the exemption to apply. If the sex is not consensual, the state can charge the defendant with sexual abuse, which is a Class A felony in Hawaii. In fact, under Hawaii's Penal Code, the charge would be first-degree sexual assault, which carries a penalty of 20 years in prison without the possibility of a suspended sentence or parole.

Laws Related to Sexuality in Hawaii

Hawaii's prohibited consensual activity laws primarily apply to public lewdness and obscenities.

Below, you'll find details about Hawaii's prohibited consensual sexual activity laws. You can also visit FindLaw's Sex Crimes section for more information.

Penalty for sodomy

None

HIV exposure and compelled testing for offenders

Under Hawaii Revised Statutes §325-16.5, a person guilty of a sexual offense must submit to HIV testing upon the victim's request and a court order.

Indecent exposure and other related crimes
  • Under H.R.S. §707-734, indecent exposure is a crime. Hawaii law defines indecent exposure as exposing one’s genitals to a third party, knowing the behavior will likely cause affront. The courts treat this offense as a petty misdemeanor. The penalty for a petty misdemeanor is up to 30 days in jail.
  • Under H.R.S. §712-1217, open lewdness is a crime. The law defines this crime as performing a lewd act in a place where a third party may witness it. The act must be likely to cause alarm. Like indecent exposure, the Hawaii courts treat open lewdness as a petty misdemeanor, punishable by up to 30 days in jail.
Age of consent
  • In Hawaii, the age of consent is 16. So it's a crime to knowingly engage in sexual penetration with someone under 16 or with someone more than five years younger than you. If both parties are of legal age, they can engage in consensual sexual intercourse.
  • Anyone who engages in sexual activity with someone under the age of consent is guilty of statutory rape.
Prostitution

Under H.R.S. §712-1200, it's a crime to engage in an act of prostitution. Depending on the facts of the case, the courts treat this crime as a petty misdemeanor.

Solicitation of prostitutes
  • Under H.R.S. §712-1209.1, it's a crime to solicit minors for prostitution. This offense is a Class C felony in Hawaii, which carries a penalty of imprisonment and a fine of up to $2,000. The prison sentence will depend on the victim's age and the defendant’s criminal history.
  • Under H.R.S. §712-1209.5, it is a crime to solicit prostitutes habitually. This is also a Class C felony.

Disclaimer: State laws are constantly changing. Contact a Hawaii criminal defense attorney or conduct legal research to verify your state laws.

An Experienced Hawaii Criminal Defense Lawyer Can Help

If you're facing criminal charges for any consensual sex act, contact a Hawaii attorney with criminal law experience. Seek legal advice as soon as possible after your arrest. This is especially true if you're facing first-degree or second-degree criminal charges. Not only will a conviction result in jail time and fines, but you may also have to register as a sex offender. This will affect your personal and professional lives.

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