§703-309 Use of force by persons with special responsibility for care, discipline, or safety of others. The use of force upon or toward the person of another is justifiable under the following circumstances:

(1) The actor is the parent, guardian, or other person similarly responsible for the general care and supervision of a minor, or a person acting at the request of the parent, guardian, or other responsible person, and:

(a) The force is employed with due regard for the age and size of the minor and is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; provided that there shall be a rebuttable presumption that the following types of force are not justifiable for purposes of this [paragraph]: throwing, kicking, burning, biting, cutting, striking with a closed fist, shaking a minor under three years of age, interfering with breathing, or threatening with a deadly weapon; and

(b) The force used does not intentionally, knowingly, recklessly, or negligently create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage.

(2) The actor is a principal, the principal's agent, a teacher, or a person otherwise entrusted with the care or supervision for a special purpose of a minor, and:

(a) The actor believes that the force used is necessary to further that special purpose, including maintenance of reasonable discipline in a school, class, other group, or at activities supervised by the department of education held on or off school property and that the use of force is consistent with the welfare of the minor; and

(b) The degree of force, if it had been used by the parent or guardian of the minor, would not be unjustifiable under paragraph (1).

(3) The actor is the guardian or other person similarly responsible for the general care and supervision of an incompetent person, and:

(a) The force is employed with due regard for the age and size of the incompetent person and is reasonably related to the purpose of safeguarding or promoting the welfare of the incompetent person, including the prevention of the incompetent person's misconduct, or, when such incompetent person is in a hospital or other institution for the incompetent person's care and custody, for the maintenance of reasonable discipline in the institution; and

(b) The force used is not designed to cause or known to create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage.

(4) The actor is a doctor or other therapist or a person assisting the doctor or therapist at the doctor's or therapist's direction, and:

(a) The force is used for the purpose of administering a recognized form of treatment which the actor believes to be adapted to promoting the physical or mental health of the patient; and

(b) The treatment is administered with the consent of the patient, or, if the patient is a minor or an incompetent person, with the consent of the minor's or incompetent person's parent or guardian or other person legally competent to consent in the minor's or incompetent person's behalf, or the treatment is administered in an emergency when the actor believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.

(5) The actor is a warden or other authorized official of a correctional institution, and:

(a) The actor believes that the force used is necessary for the purpose of enforcing the lawful rules or procedures of the institution;

(b) The nature or degree of force used is not forbidden by other provisions of the law governing the conduct of correctional institutions; and

(c) If deadly force is used, its use is otherwise justifiable under this chapter.

(6) The actor is a person responsible for the safety of a vessel or an aircraft or a person acting at the direction of the person responsible for the safety of a vessel or an aircraft, and:

(a) The actor believes that the force used is necessary to prevent interference with the operation of the vessel or aircraft or obstruction of the execution of a lawful order, unless the actor's belief in the lawfulness of the order is erroneous and the actor's error is due to ignorance or mistake as to the law defining authority; and

(b) If deadly force is used, its use is otherwise justifiable under this chapter.

(7) The actor is a person who is authorized or required by law to maintain order or decorum in a vehicle, train, or other carrier, or in a place where others are assembled, and:

(a) The actor believes that the force used is necessary for that purpose; and

(b) The force used is not designed to cause or known to create a substantial risk of causing death, bodily injury or extreme mental distress. [L 1972, c 9, pt of §1; am L 1992, c 210, §1; am L 2001, c 94, §1; am L 2013, c 31, §1]

Revision Note

In paragraph (5)(a), "and" deleted pursuant to §23G-15.

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.

Act 31, Session Laws 2013, amended §703-309 to clarify the parental discipline defense by: (1) establishing a rebuttable presumption that specified types of physical force when used to discipline minors are not justified; and (2) expanding the state of mind element required to establish that the force used is justified by requiring that the force used does not intentionally, knowingly, recklessly, or negligently create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage. Act 31 placed limitations on the parental discipline defense while preserving a parent's general right to safeguard and promote the welfare of a child through the use of disciplinary force. Senate Standing Committee Report No. 322, House Standing Committee Report No. 1223.

Law Journals and Reviews

Hamilton v. Lethem: The Parental Right to Discipline One's Child Trumps a Child's Right to Grow Up Free from Harm. 36 UH L. Rev. 347 (2014).

Case Notes

Parent did not inflict serious pain when hitting child with belt. 72 H. 241, 813 P.2d 1382 (1991).

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 (1996).

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 H. 5, 911 P.2d 725 (1996).

Trial court's finding that defendant parent's "slap across the face" was not "reasonably proportional" to child's refusal to come to defendant when repeatedly directed to do so was not supported by substantial evidence. 90 H. 85, 976 P.2d 399 (1999).

Where defendant, a non-custodial parent, was acting within the defendant's court-prescribed unsupervised visitation time, defendant retained, as a "residual parental right", within the meaning of §571-2, the authority to discipline defendant's child with respect to that child's conduct during the visitation period; thus, defendant was a "parent" for purposes of paragraph (1). 90 H. 85, 976 P.2d 399 (1999).

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 (2007).

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 (2008).

Appellate court erred in determining that respondent was precluded from having the jury instructed on the parental discipline defense because the force used against complainant resulted in substantial bodily injury; the plain language of paragraph (1)(b) specifically ties the defense to criminal liability to the nature of the force used as opposed to the result of such use of force. 125 H. 78, 253 P.3d 639 (2011).

Where there was some evidence indicating that under the circumstances, the force used was not designed to cause or known to create a risk of substantial bodily injury, defendant was entitled to have the parental discipline defense instruction given to the jury for it to make that determination. 125 H. 78, 253 P.3d 639 (2011).

Where, with respect to paragraph (1)(a), defendant did adduce some evidence that the force "was employed with due regard for the age and size of the minor and was reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct", the defendant was entitled to instruction on this defense, no matter how weak, unsatisfactory, or inconclusive the evidence might have appeared to the court; where a defendant asserts the parental discipline defense in a jury trial, it is for the jury to decide whether such a defense has merit. 125 H. 78, 253 P.3d 639 (2011).

Appellate court correctly held that there was sufficient evidence to sustain defendant's harassment conviction under §711-1106(1)(a) where defendant chose to slap minor in the face and strike minor with a bamboo stick at least five times with enough force to leave red welts visible the next day; based on the totality of circumstances in the case, substantial evidence existed to support the conclusion that the State proved beyond a reasonable doubt that the force defendant employed against minor was without due regard for minor's age and size, thus disproving defendant's parental justification defense under this section. 126 H. 494, 273 P.3d 1180 (2012).

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 (1992).

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 (1996).

The "physical harm" encompassed in the definition of family violence in §571-2 would not preclude a parent's 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 (1998).

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 court's application of §571-46(9) (1993) in determining the best interests of the child when awarding custody or visitation. 88 H. 200 (App.), 965 P.2d 133 (1998).

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 (2004).

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 (2004).

Family court addressed father's permissible discipline argument under paragraph (1) and did not err in failing to apply this parental discipline defense when it concluded that even if the defense were available, father's use of force was not reasonably related to safeguarding or promoting minor's welfare. 125 H. 330 (App.), 260 P.3d 1148 (2011).

Although father's punches were forceful enough to cause bruising, they were not forceful enough to rise to the level of viciousness in which the level of attack "severed any relationship between the use of force and the welfare" of the complaining witness that "might be considered reasonable"; it was at most a "gray area" in which some in the community would find that father's extent of punishment was inappropriate; however, such gray areas are not resolved by criminalizing such parental discipline; therefore, there was insufficient evidence to disprove father's parental discipline defense under paragraph (1)(a). 125 H. 406 (App.), 263 P.3d 116 (2011).

Where there was no substantial evidence and nothing in the record to indicate that father's punching son twice on son's left leg was designed to cause or was known to create the risk of causing extreme mental distress, the State did not disprove beyond a reasonable doubt father's parental discipline defense under paragraph (1)(b). 125 H. 406 (App.), 263 P.3d 116 (2011).

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§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).