§709-903 Persistent nonsupport. (1) A person commits the offense of persistent nonsupport if the person knowingly and persistently fails to provide support which the person can provide and which the person knows the person is legally obliged to provide to a spouse, child, or other dependent.
(2) "Support" includes but is not limited to food, shelter, clothing, education, and other necessary care as determined by law.
(3) Persistent nonsupport is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]
COMMENTARY ON §709-903
The purpose of laws dealing with nonsupport by a person who owes a duty of support to another is to enforce compliance with the legislative directive setting forth a community standard; yet a policy of strict criminal punishment of offenders would frustrate the purpose of the law by incapacitating (by incarceration or fine) the defendant from providing the support.
Exemplary punishment is of doubtful efficacy in complex family situations, where many forces, psychic, social, and economic, may combine to excuse, if not justify, the behavior. Moreover, imprisonment should be a last resort here, since it incapacitates the defendant from providing the very support which the community seeks to require and frustrates any broader effort to rehabilitate the family situation. Recent thought has favored the development of "family courts" staffed to handle non-support and other intra-family problems primarily through social work, with less concentration on purely fiscal aspects.[1]
The Code adopts the position that intervention of the criminal process ought to take place only as a last resort. The primary resort ought to be to the social and counseling processes of the Family Court. It is only when a record has been established of repeated, persistent failure to provide the support which the defendant can provide and which the defendant knows the defendant is obliged by law to provide that the criminal process ought to be employed.
By focussing on "persistent" defaulters, we express a legislative policy in favor of resort, in the first instance, to non-penal measures....
The concept of "persistent" violation is not unprecedented in penal law.... The term connotes repetition, obstinacy, wilfulness; and it is difficult to formulate a more precise standard to differentiate the aggravated case of continued defiance of the support law, which we wish to penalize, from the simple case of default which may be solved by an official notice or judicial order to pay, or some intelligent social work.[2]
There were a number of provisions in previous law which dealt with the problem of nonsupport, and they were not totally consistent with one another. None of them focused on the concept of persistent default as a condition precedent for a criminal sanction; however, in actual practice, the prosecutor probably required some degree of persistency.
Under Hawaii's adoption, in modified form of the Uniform Desertion and Nonsupport Act:
Any husband who deserts or wilfully neglects his wife, or wilfully fails, neglects, or refuses to provide for her support or maintenance, thereby reducing her to destitute or necessitous circumstances, or any parent who deserts or wilfully neglects his or her child or children under the age of sixteen years, or wilfully fails, neglects or refuses to provide for the support or maintenance of the child or children or wilfully fails, neglects, or refuses to pay amounts awarded for the support and maintenance of such child or children under a decree of divorce, thereby reducing the child or children to destitute or necessitous circumstances, shall be guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine not exceeding $500 or imprisonment not exceeding one year, or both; provided, that instead of imposing the sentence provided in this section the court may release the defendant under suspended sentence for such period as shall be fixed by the court and under such terms as shall be fixed by the court as to the payment weekly or otherwise of money for the support of the wife or child and as to giving security for such payments and for the appearance of the defendant at such time or times as the court shall direct. The terms so fixed by the court shall be subject to change or additional security at any time.[3]
Under the chapter dealing with protection of children, substantially similar conduct, as it related to children, subjected the offender to a sentence with approximately half the severity of that provided under the Uniform Act.
Any person who wilfully abandons ... any child under his legal control or neglects to provide the child with suitable or necessary food or clothing ... shall be fined not more than $200 or imprisoned not more than six months.[4]
The statutes imposing a duty of support are not exactly consistent in defining the extent of the duty. Although an illegitimate child does not have a right to be supported by its father,[5] if an action to establish paternity is brought and paternity is established, the child becomes entitled, with certain exceptions, to "support, maintenance and education" until the child reaches eighteen years of age.[6] Under certain specific circumstances, a step-parent is required to support his or her step-child.[7] The age to which the duty to support one's children continues is not specified, except in the case of illegitimates, although by inference it continues until the child has achieved majority.[8]
The Code attempts to reconcile some of the latent ambiguities which exist in comparing the various sections of prior law. A single section covering penal default of support provides a uniform authorized sentence for similar conduct. By covering "spouse, child or other dependent," the Code provides that the penal sanction may be employed in all cases where the support law establishes a duty of support. The use of the word "child" in this section is intended to cover all persons who have not reached the age of majority. The definition of support ensures that all forms of care which are required by the support law are covered. However, unlike the previous law, which, on its face, would allow resort to prosecution in the first instance of default, the Code requires that the default be persistent before a prosecution can be successfully maintained.
SUPPLEMENTAL COMMENTARY ON §709-903
The Proposed Draft had included "medical attention" as one of the items of "support." However, that was deleted by the legislature in 1972. As stated in Conference Committee Report No. 2 (1972):
Your Committee has agreed to the deletion of the words "medical attention" as a requisite of the term "support" in order to avoid penalizing the free exercise of certain religions.
Case Notes
Reasonable to conclude that term "support" includes medical attention and medical assistance, except where the exercise of religion is involved. 8 H. App. 506, 810 P.2d 672 (1991).
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§709-903 Commentary:
1. M.P.C., Tentative Draft No. 9, comments at 188 (1959).
2. Id. at 188-189.
3. H.R.S. §575-1.
4. Id. §577-12.
5. See id. §577-14 (semble).
6. Id. §579-4.
7. Id. §577-4.
8. But see id. §571-2, which defines, for purposes of chapter 571, "child" to mean "a person less than eighteen years of age."
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