Stricter abuse law criticized as excessive

Police are arresting people under a new state law that makes domestic violence a felony if done in the presence of children, but critics say the law is excessive.

The statute, which took effect June 20, makes physical abuse "in the presence of" a child under 14, who is a family or household member, a class C felony, punishable by up to five years’ imprisonment. Abuse without a child present remains a misdemeanor, punishable by up to one year in jail.

The Honolulu Police Department did not have the number of people arrested on suspicion of felony abuse on Oahu, but HPD media reports show eight people were arrested under the felony offense and one person arrested for misdemeanor abuse in the past two weeks. The department does not make a media report for every arrest.

Some defense attorneys have concerns about the law’s severity and what they see as vagueness.

Defense attorney Myles Breiner, who commended the effort to protect children, said convicting a person of a felony will make it more difficult for an individual to find work, adding stress to a young family.

"It unnecessarily criminalizes people who should not be criminalized," he said. "Felony convictions put you in the least likely category to get any kind of public assistance for housing and vocational training."

He also questioned the definition of the term "presence," which could mean in another part of a home where the child hears arguing but doesn’t see anything.

Breiner said the law also leaves room for misuse. For example, a person might insert a child into a situation to elevate the crime against the offender, he said.

The state public defender’s office also opposed the measure before it became law, questioning in testimony whether a minor fighting with a sibling under the age of 14 will be charged with a felony.

The prosecutor’s office said in a statement only that it is working with police to establish guidelines to address concerns about the law.

The office did not say whether anyone has been charged under the new statute, but most of the felony arrests reported by police have been downgraded to lesser offenses.

In five of the reported cases, the charges were reduced to misdemeanor abuse or harassment.

One of those cases involved a 31-year-old man who allegedly struck his girlfriend on the head in Kapolei while she was carrying her 4-month-old daughter.

Of the remaining three cases, one was dismissed and in two the outcomes were unclear.

Before the bill became law, prosecutors from Kauai, Oahu and Hawaii island expressed support in testimony, saying research shows children who witness domestic violence can suffer severe emotional and mental difficulties.

At least 14 other states have laws requiring harsher penalties or have a separate law for domestic violence committed in the presence of a child, the Honolulu prosecutor’s office said in testimony. The office added that the increased penalties will discourage similar conduct.

Rep. Derek Kawakami (D, Hanalei-Wailua) introduced the bill after discussions with the Kauai prosecutor’s office. He said the bill is strict because it’s important to protect children.

Immigration attorney Gary Singh supports the law for the protection of children, but said there needs to be more effort to educate immigrants and visitors.

"If you’re a green card holder, the first five years you pick up a felony conviction, you will get deported," he said. "We need to educate the community. How are they going to know about this law?"

Perhaps Hawaii could take a page from Malaysia, where, he said, there are large signs warning that the sentence for bringing in drugs or guns is death.

"Even the U.S. citizens, they don’t know anything about it (the Hawaii law) and some of them may end up losing their jobs," he said.