State v. Shingaki, 8268

• Decision Date: 15 July 1982
• Docket Number: No. 8268,8268
• Citation: 65 Haw. 116,648 P.2d 190
• Parties: , 8 Media L. Rep. 2111 STATE of Hawaii, Plaintiff-Appellant, v. Masaru SHINGAKI, also known as Masa, Defendant-Appellee, and Helga Marie Adams, also known as Helga Bradley Adams and Raymond James Proctor, Defendants.
• Court: Hawaii Supreme Court

Page 190

648 P.2d 190

65 Haw. 116, 8 Media L. Rep. 2111

STATE of Hawaii, Plaintiff-Appellant, v. Masaru SHINGAKI, also known as Masa, Defendant-Appellee, and Helga Marie Adams, also known as Helga Bradley Adams and Raymond James Proctor, Defendants.

No. 8268.

Supreme Court of Hawai'i.

July 15, 1982.

Syllabus by the Court

1. The overriding interest of a state in preventing child abuse is such that the dissemination with knowledge of, or reason to know of the contents of, material depicting children engaging in or assisting others to engage in sexual conduct can constitutionally be forbidden without regard to whether the material is obscene.

2. A statute which forbids a person knowing or having reason to know of the character and content of the material from disseminating that material if it depicts children engaging in or assisting others to engage in sexual conduct, as defined by the statute, is not unconstitutional as being overly broad in scope.

Nathan Aipa, Deputy Pros. Atty., Honolulu (Arthur E. Ross, Deputy Pros. Atty., Honolulu, on brief), for plaintiff-appellant.

Winston Mirikitani, Honolulu (Reinhard Mohr, Honolulu, with him on the brief; Mirikitani, Alexander-Taylor & Mohr, Honolulu, of counsel), for defendant-appellee.

Before RICHARDSON, C. J., and LUM, NAKAMURA, PADGETT and HAYASHI, JJ.

PER CURIAM.

This is an appeal from an order below dismissing an indictment charging offenses under § 707-751, HRS. The court below held the statute to be overly broad in contravention of the First Amendment of the United States Constitution. The court below also, apparently, held the statute to be unconstitutional because it did not meet the tests laid down in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), for obscenity. We reverse.

Both grounds upon which the court below relied were dealt with in depth by the Supreme Court of the United States on July 2, 1982 in New York v. Ferber, --- U.S. ----, 102 S.Ct. 3348, 72 L.Ed.2d ----, which reversed a similar order entered in New York with respect to a similar statute.

As to appellee's argument that the "obscenity" standards of Miller, supra, are applicable, the Supreme Court of the United States in Ferber, supra, pointed out that the state's overriding interest in preventing child abuse makes the test of obscenity inapplicable in cases involving the distribution of material depicting children engaging in sexual conduct. We agree.

We turn then to the contention that the statute is "overbroad." Section 707-751, HRS, provides:

Promoting child abuse in the second degree. (1) A person commits the offense of promoting child abuse in the second degree if, knowing or having reason to know its character and content, the person disseminates any material which employs, uses, or otherwise contains a minor engaging in or assisting others to engage in sexual conduct.

(2) As used in this section:

"Disseminate" means to publish, sell, distribute, transmit, exhibit, or present material or to offer or agree to do the same.

"Material" means any printed matter, visual representation, or sound recording, and includes but is not limited to books, magazines, motion picture films, pamphlets, newspapers, pictures, photographs, and tape or wire recordings.

"Minor" means any person less than sixteen years old.

"Sexual conduct" means acts of masturbation, homosexuality, lesbianism, bestiality, sexual intercourse, deviate sexual intercourse,...