Haw. Rev. Stat. § 703-309
The use of force upon or toward the person of another is justifiable under the following circumstances:
HRS § 703-309
COMMENTARY ON § 703-309
Subsection (1) justifies the use of force against minors by a parent or other person in loco parentis, subject to two limitations: (1) the force must be employed for safeguarding or promoting the welfare of the minor, and (2) it must not be designed to cause or known to create a substantial risk of death, serious bodily injury, disfigurement, extreme pain or mental distress, or gross degradation. Thus the subsection sets a fairly simple and unexceptionable standard; the right of parents to use force to discipline their children is recognized, subject to clear requirements not to cause permanent injury.
Subsection (2) permits a teacher or other person entrusted with care for a special purpose (e.g., a camp counsellor) to use such force as believed necessary to further that purpose, including the maintenance of discipline, subject to the limitations of subsection (1) relating to death and injury. This subsection recognizes that a teacher will not ordinarily need to have the full scope of parental authority, but will have certain special needs, such as maintenance of class discipline, which are peculiar to the teaching situation. The intent of the Code in allowing this limited justification is not however, to encourage corporal punishment.
Subsection (3) justifies the use of force by a guardian responsible for the care and supervision of an incompetent person, but only to promote the welfare of the incompetent or to maintain discipline. Force may not, therefore, be used as punishment, as distinct from prevention of misconduct, except for the maintenance of institutional discipline. Force may not cause death, serious bodily injury, or the like, nor may it cause humiliation--a lesser amount of harm than countenanced for children in subsection (1).
Subsection (4) permits the use of force by a doctor or other therapist to administer a recognized form of treatment which the doctor or other therapist believes to be adapted to promoting the physical or mental health of the patient. Ordinarily such treatment would be administered with consent, but it may be administered without consent in an emergency. Under the wording of the section, if consent is in fact denied by the patient or a person competent to give consent, the use of force would no longer be justified.
Subsection (5) justifies force used by a warden or other authorized prison official to enforce prison rules and discipline. The force used must not be in excess of that permitted by statutes relating to prisons, and deadly force may be used only when justified under other sections of this Code.
Subsection (6) permits the use of force by a person responsible for the safety of a vessel or airplane to prevent interference with its operation or obstruction of the execution of a lawful order (unless the person is erroneous in the person's belief in the lawfulness of the order). Deadly force may be used if justified under this Code.
Subsection (7) permits force by a person authorized by law to maintain public order in public conveyances and public places. The person may not use force creating a substantial risk of death, bodily injury, or extreme mental distress.
The section is substantially in accord with preexisting Hawaii law. Hawaii law permits parents "to chastise [their children] moderately for their good."[1] Under prior law, any corporal punishment was permitted if reasonable.[2] To the extent that Hawaii case law suggests that the parents have uncontrolled discretion to discipline their children,[3] the Code represents a change. Similarly, teachers have had authority under Hawaii case and statutory law to use force to maintain discipline in the schools.[4] The punishment must have been reasonable,[5] and the teachers' discretion was considered less extensive than that of parents.[6] Prison officials under prior Hawaii law were permitted to use force to maintain discipline in the prisons;[7] and ship captains had the right to employ force to keep order on their vessels.[8] In all the above situations, the Code states with greater clarity than existing law when, for what purposes, and to what extent force may be used by persons with special responsibility for the care, discipline, or safety of others. Also, subsections (3), (4), and (7) represent additions to Hawaii law.
SUPPLEMENTAL COMMENTARY ON § 703-309
Act 210, Session Laws 1992, amended this section to clarify the permitted level of force that a person responsible for the care of a minor, or an incompetent person, may use. In determining whether the level of force used is permitted, a court must consider the age and size of the recipient and whether a reasonable relationship exists between the force used and a legitimate purpose as specified in the statute. Conference Committee Report No. 103.
Act 94, Session Laws 2001, amended this section to clarify that the use of force upon another person is justified when the actor is a principal or principal's agent, when necessary, during school events or at a departmentally supervised function on or off school property. Current law allowed the use of force by teachers or other persons entrusted with the care or supervision for a special purpose of a minor, if the teacher or person believed the force used was necessary to further the special purpose, including maintenance of reasonable discipline. The legislature found it necessary that school personnel be authorized to take reasonable, appropriate, and expeditious action when confronted with potentially dangerous situations or serious disciplinary situations, on campus and off-campus at authorized school functions. School officials must be allowed to take immediate action to preserve order and discipline without having to wait for the police to arrive. Senate Standing Committee Report No. 1400.
Parent did not inflict serious pain when hitting child with belt. 72 H. 241, 813 P.2d 1382. Force used by defendant not reasonably related to protecting minor's welfare where, according to testimony, spanking caused minor to be unable to sit while in school classes. 81 H. 5, 911 P.2d 725. Injuries inflicted by defendant designed to cause or known to create a risk of substantial bodily injury, extreme pain or mental distress where, according to testimony, minor was in extreme pain for days and unable to sit without pain for weeks after spanking.81 Haw. 5,911 P.2d 725. Trial courts finding that defendant parents "slap across the face" was not "reasonably proportional" to childs refusal to come to defendant when repeatedly directed to do so was not supported by substantial evidence. 90 H. 85, 976 P.2d 399. Where defendant, a non-custodial parent, was acting within the defendants court-prescribed unsupervised visitation time, defendant retained, as a "residual parental right," within the meaning of § 571-2, the authority to discipline defendants child with respect to that childs conduct during the visitation period; thus, defendant was a "parent" for purposes of subsection (1).90 Haw. 85,976 P.2d 399. Prosecution failed to prove beyond a reasonable doubt that mother's conduct did not come within the scope of parental discipline as prescribed in paragraph (1) where, considering the totality of the facts and circumstances, the force employed by mother was reasonably proportionate to daughter's defiant behavior towards mother, was reasonably believed to be necessary to discipline daughter, and the force used was "not designed to cause or known to create substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage". 115 H. 149, 166 P.3d 322. Considering the totality of facts and circumstances, the force employed by mother's boyfriend (1) was reasonably proportionate to minor's defiant behavior towards boyfriend, (2) was reasonably believed to be necessary to discipline minor for minor's defiant attitude and demeanor, and the degree of force used was "not designed to cause or known to create a substantial risk of causing bodily injury"; thus, boyfriend's discipline was not excessive in light of minor's age, misconduct, and the comparatively mild physical force used, and the prosecution failed to disprove boyfriend's parental discipline defense beyond a reasonable doubt. 119 H. 468, 199 P.3d 57. Where parent struck child, evidence insufficient to support finding that force used by parent exceeded protection provided by paragraph (1)(b) (1985). 9 H. App. 345, 841 P.2d 1076. Trial court erred when it concluded that "reasonably related" standard in paragraph (1)(a) precludes altogether the use of disciplinary force simply because prior non-physical alternatives failed to prevent minor's continuing misconduct. 82 H. 373 (App.), 922 P.2d 986. The "physical harm" encompassed in the definition of family violence in § 571-2 would not preclude a parents right to use force to discipline a child as permitted by paragraph (1), and duty to discipline a child under § 577-7(a). 88 H. 200 (App.), 965 P.2d 133. The term "family violence" in § 571-46(9) (1993) does not extend to the type of physical discipline of a child by his or her parent that is expressly permitted in paragraph (1); the limits on the use of physical force as a disciplinary measure in paragraph (1) adequately served to guide the family courts application of § 571-46(9) (1993) in determining the best interests of the child when awarding custody or visitation.88 Haw. 200 (App.),965 P.2d 133. There was substantial evidence adduced to negate the "parental discipline" justification defense under paragraph (1) where what uncle levied upon nephew was a wanton beating that (1) was not reasonably related to the purpose of safeguarding or promoting the welfare of the nephew, including the prevention or punishment of the nephew's misconduct, nor reasonably proportional to the misconduct being punished and reasonably believed necessary to protect the welfare of the nephew, and (2) directly or by its common sequelae is "known to create a risk of substantial bodily injury". 105 H. 394 (App.), 98 P.3d 265. Defendant's conviction of harassment under § 711-1106 reversed where trial court erroneously concluded that father's actions could not be seen as reasonably necessary to protect the welfare of the recipient, and the State failed its burden of disproving beyond a reasonable doubt the justification evidence that was adduced, or proving beyond a reasonable doubt facts negativing the justification defense under this section. 106 H. 252 (App.), 103 P.3d 412. __________ § 703-309 Commentary: 1. H.R.S. § 577-7. 2. Id. § 577-12. 3. Territory v. Cox, 24 Haw. 461, 463 (1918). 4. H.R.S. § 298-16; Kahula v. Austin, 8 Haw. 54 (1890); Territory v. Cox, supra. 5. Territory v. Cox, supra (whipping considered reasonable punishment); Kahula v. Austin, supra (haircutting considered unreasonable punishment). It appears that judgments as to reasonableness in this area are likely to change to reflect more contemporary standards. 6. Territory v. Cox, supra at 463; Kahula v. Austin, supra. 7. H.R.S. §§ 353-91, 353-94; King v. Sherman, 1 Haw. 150 (1883); In re Candido, 31 Haw. 982 (1931). 8. United States v. Gisaburo, 1 U.S. Dist. Ct. Haw. 323 (1902).