PART IV.

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PART IV. BRIBERY

§710-1040 Bribery.

(1)A person commits the offense of bribery if:

(a)The person confers, or offers or agrees to confer, directly or indirectly, any pecuniary benefit upon a public servant with the intent to influence the public servant's vote, opinion, judgment, exercise of discretion, or other action in the public servant's official capacity; or

(b)While a public servant, the person solicits, accepts, or agrees to accept, directly or indirectly, any pecuniary benefit with the intent that the person's vote, opinion, judgment, exercise of discretion, or other action as a public servant will thereby be influenced.

(2)It is a defense to a prosecution under subsection

(1)that the accused conferred or agreed to confer the pecuniary benefit as a result of extortion or coercion.

(3)For purposes of this section, "public servant" includes in addition to persons who occupy the position of public servant as defined in section [710-1000], persons who have been elected, appointed, or designated to become a public servant although not yet occupying that position.

(4)Bribery is a class B felony. A person convicted of violating this section, notwithstanding any law to the contrary, shall not be eligible for a deferred acceptance of guilty plea or nolo contendere plea under chapter 853. [L 1972, c 9, pt of §1; gen ch 1993; am L 2006, c 230, §47]

COMMENTARY ON §710-1040

In most cases, bribery subverts the efficient functioning of the government to the benefit of a private individual, or a limited class of individuals. Efficiency is undermined because those choices and decisions which are the job of public servants cease to be made solely on the basis of merit, and hence the chance that the alternative most beneficial to the functioning of the government, or to the people collectively, is decreased. The pervasive and far-reaching nature of this offense against public administration warrants the class C felony sanction.

Moreover, both parties to bribery are obviously to be considered culpable, one no less than the other. The victim of this offense is usually the public in general, although in particular instances (particularly competitive bid and judicial or quasi-judicial situations) individuals may suffer more directly. Subsection (1)(a) covers the offeror of the bribe, while subsection (1)(b) covers the offeree.

The defense provided for in subsection

(2)is intended to allow the actor who commits bribery as a result of extortion or coercion to have the opportunity to raise these facts as a defense. As with all defenses in this Code which are not made affirmative, once the issue is raised, the prosecution must negate it beyond a reasonable doubt. It is questionable whether the sections on duress (§702-231) or choice of evils (§703-302) adequately cover this situation. Therefore, the defense is specifically provided for by this subsection.

Previous Hawaii law recognized bribery as a criminal offense, but treated bribe giving as a lesser offense than bribe receiving,[1] which carried approximately the same penalty as that provided by the Code. The Code equalizes the penalties. In defining the offense the Code requires that the actor have the intent to influence or the intent to be influenced. Previous law required that, in case of bribery receiving, the actor act "corruptly" and with an "understanding." Under the Code, intent is the relevant state of mind.

The Code requires that the actor solicit, accept, or agree to accept the pecuniary benefit with intent that the actor will thereby be influenced. As in the inchoate offense of conspiracy, the Code takes the unilateral approach to penal liability: the offer may be feigned, or made innocently, but if the receiver intended to be influenced thereby liability attaches, notwithstanding an absence of an agreement or understanding.

SUPPLEMENTAL COMMENTARY ON §710-1040

Act 230, Session Laws 2006, amended bribery from a class C to a class B felony, and provided that a person convicted of bribery shall not be eligible for a deferred acceptance of guilty plea or nolo contendere plea under chapter 853.

Case Notes

Plaintiffs failed to establish genuine issue of fact whether five million dollar gift to city and county of Honolulu was a bribe; plaintiffs raised genuine issue of fact whether campaign contributions were bribes. 906 F. Supp. 1377 (1995).

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§710-1040 Commentary:

1. Compare H.R.S. §725-1 with H.R.S. §725-2.