CONSENT

CONSENT In any prosecution, the complaining witness' consent to the conduct alleged or to the result thereof, is a defense if the consent negatives an element of the offense or precludes excuses the infliction of the harm [or evil] sought to be prevented by the law defining the offense. [Consent is not a defense if: (1) It is given by a person who is legally incompetent to authorize the conduct alleged; or (2) It is given by a person who by reason of youth, mental disease, disorder, or defect, or intoxication is manifestly unable or known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct alleged; or (3) It is given by a person whose [improvident] consent is sought to be prevented by the law defining the offense; or (4) It is induced by force, duress, or deception.] Consent may be express or implied. "Consent" means a voluntary agreement or concurrence. The burden is upon the prosecution to prove beyond a reasonable doubt that the complaining witness did not give express or implied consent to the conduct alleged or the result thereof. If the prosecution fails to meet its burden, then you must find the defendant not guilty. Commentary At common law, consent was generally not a defense to a criminal prosecution. State v. Lira, 70 Haw. 23, 27, 759 P.2d 869, 872 (1988). HRS § 702-233, however, based on Model Penal Code § 2.11, provides that consent is a defense in a criminal prosecution “if the consent negatives an element of the offence or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.” See also State v. Suka, 70 Haw. 472, 478, 777 P.2d 240, 243 (1989) (“if the consent negatives an element of the offense.”) See HRS §§ 702- 234 (“consent to bodily injury”) and 702-235 (“ineffective consent”). A defendant may raise the defense of consent and the courts should so instruct the jury even though it is inconsistent with other defenses, such as denial that the conduct occurred. Lira, 70 Haw. 23, 759 P.2d 869 (1988). A defendant is entitled to a jury instruction on the defense of consent where there is any evidence of consent in a trial on sexual assault, however the consent instruction need not be included in the same instruction as the elements of sexual assault and can be given separately. State v. Horswill, 75 Haw. 152, 857 P.2d 579 (1993). When a defendant requests an instruction on consent in a sex offense prosecution, and there is evidence of consent, the trial court must instruct the jury on the defense of consent notwithstanding the giving of instructions requiring the jury to find forcible compulsion. Suka, 70 Haw. 472, 777 P.2d 240. "Consent is a valid defense to the first degree sexual offenses since consent to the sexual conduct clearly negatives forcible compulsion." Id. at 478, 777 P.2d at 243. "Only the giving of a consent instruction will ensure that the defense of consent is not compromised." Id. However, consent is not a defense to statutory sexual assault (sexual penetration or contact with a person less than fourteen years old) since the complainant's consent or lack thereof is not an element of this form of the offense. State v. Cardus, 86 Hawai'i 426, 949 P.2d 1047 (App. 1997). Consent must be informed consent. "Consent does not constitute a defense if . . . it is induced by force, duress or deception." HRS § 702-235(4). A teller's mistake in paying out too much money on cashing a check did not afford the defendant a consent defense. Territory v. Lee, 29 Haw. 30 (1926); see also State v. Oshiro, 5 Haw. App. 404, 696 P.2d 846 (1985) (the rape victim did not consent to the nitrous oxide administered by the defendant dentist). Consent also does not constitute a defense if it "is given by a person whose improvident consent is sought to be prevented by the law defining the offense." HRS § 702- 235(3); Cardus, 86 Hawai'i 426, 949 P.2d 1047 (in those provisions of HRS §§ 707-730 and 707-733 where compulsion or strong compulsion is not an element of the offense, as in HRS § 707-731(1)(c), the lack of consent is not relevant to the harm sought to be prohibited by the statute, and thus an inmate's consent to sexual penetration is deemed "improvident" and "prevented" by law). Consistent with the rationale that a youth or mentally defective person is incapable of giving consent, HRS § 702- 235(2) provides that consent does not constitute a defense if "it is given by a person who by reason of youth, mental disease, or defect is manifestly unable or known by the defendant to be unable to make unreasonable judgment as to the nature or harmfulness of the conduct alleged. In re Doe, 81 Hawai'i 447, 918 P.2d 254 (App. 1996) (defendant could not be found guilty of HRS § 707-731(1)(b) unless it is proved beyond a reasonable doubt that (1) complainant was mentally defective, mentally incapacitated, or physically helpless, and (2) defendant was aware that complainant was such a person). See State v. Adams, 10 Haw. App. 593, 605, 880 P.2d 226, 234 (1994) (consent may be express or implied).