Promoting Child Abuse in the First Degree-- Pornographic Material

Promoting Child Abuse in the First Degree-- Pornographic Material: H.R.S. § 707-750(1)(b) [In Count (count number) of the Indictment/Complaint, the] [The] Defendant, (defendant's name), is charged with the offense of Promoting Child Abuse in the First Degree. A person commits the offense of Promoting Child Abuse in the First Degree if he/she, knowing or having reason to know its character and content, [produces] [participates in the preparation of] pornographic material that [employs] [uses] [contains] a minor [engaging] [assisting others to engage] in sexual conduct. There are three material elements of the offense of Promoting Child Abuse in the First Degree, each of which the prosecution must prove beyond a reasonable doubt. These three elements are: 1. That, on or about (date) in the [City and] County of (name of county), the Defendant [produced] [participated in the preparation of] pornographic material that [employed] [used] [contained] a minor [engaging] [assisting others to engage] in sexual conduct; and 2. That the Defendant knew or had reason to know that he/she was doing so; and 3. That the Defendant knew or had reason to know the character and content of the pornographic material. “Community standards” means the standards of the State of Hawaii. “Lascivious” means tending to incite lust, to deprave the morals in respect to sexual relations, or to produce voluptuous or lewd emotions in the average person, applying contemporary community standards. “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 eighteen years old. “Pornographic” means all of the following are present: (a) The average person, applying contemporary community standards would find that, taken as a whole, the material appeals to the prurient interest; and (b) The material depicts or describes sexual conduct in a patently offensive way; and (c) Taken as a whole, the material lacks serious literary, artistic, political, or scientific merit. “Produces” means to produce, direct, manufacture, issue, publish, or advertise. “Sadomasochistic abuse” means flagellation or torture by or upon a person as an act of sexual stimulation or gratification. “Sexual conduct” means acts of masturbation, homosexuality, lesbianism, bestiality, sexual penetration, deviate sexual intercourse, sadomasochistic abuse, or lascivious exhibition of the genital or pubic area of a minor. “Visual representation” refers to, but is not limited to, undeveloped film and videotape and data stored on computer disk or by electronic means that are capable of conversion into a visual image. Notes H.R.S. §§ 707-750, 702-206(2). For definition of states of mind, see instruction: For prima facie inference, see instruction 9.54.3. Promoting Child Abuse in the First Degree – Pornographic Performance: H.R.S. § 707-750(1)(c) [In Count (count number) of the Indictment/Complaint, the] [The] Defendant, (defendant's name), is charged with the offense of Promoting Child Abuse in the First Degree. A person commits the offense of Promoting Child Abuse in the First Degree if he/she, knowing or having reason to know its character and content, engages in a pornographic performance that [employs] [uses] [contains] a minor [engaging] [assisting others to engage] in sexual conduct. There are three material elements of the offense of Promoting Child Abuse in the First Degree, each of which the prosecution must prove beyond a reasonable doubt. These three elements are: 1. That, on or about (date) in the [City and] County of (name of county), the Defendant engaged in a pornographic performance that [employed] [used] [contained] a minor [engaging] [assisting others to engage] in sexual conduct; and 2. That the Defendant knew or had reason to know that he/she was doing so; and 3. That the Defendant knew or had reason to know the character and content of the pornographic performance. “Community standards” means the standards of the State of Hawaii. “Lascivious” means tending to incite lust, to deprave the morals in respect to sexual relations, or to produce voluptuous or lewd emotions in the average person, applying contemporary community standards. “Minor” means any person less than eighteen years old. “Performance” means any play, motion picture film, dance, or other exhibition performed before any audience. “Pornographic” means all of the following are present: (a) The average person, applying contemporary community standards would find that, taken as a whole, the material appeals to the prurient interest; and (b) The material depicts or describes sexual conduct in a patently offensive way; and (c) Taken as a whole, the material lacks serious literary, artistic, political, or scientific merit. “Sadomasochistic abuse” means flagellation or torture by or upon a person as an act of sexual stimulation or gratification. “Sexual conduct” means acts of masturbation, homosexuality, lesbianism, bestiality, sexual penetration, deviate sexual intercourse, sadomasochistic abuse, or lascivious exhibition of the genital or pubic area of a minor. Notes H.R.S. §§ 707-750, 702-206(2). For definition of states of mind, see instruction: For prima facie inference, see instruction 9.54.3. Inference: Promoting Child Abuse in the First Degree: H.R.S. § 707-750(3) If you find beyond a reasonable doubt that the Defendant [[produced] [participated in the preparation of] child pornography] [[produced] [participated in the preparation of] pornographic material that [employed] [used] [contained] a minor [engaging] [assisting others to engage] in sexual conduct] [engaged in a pornographic performance that [employed] [used] [contained] a minor [engaging] [assisting others to engage] in sexual conduct], you may, but are not required to, infer that the Defendant engaged in such conduct with knowledge of the character and content of the [child pornography [produced] [prepared]] [pornographic material [produced] [prepared]] [pornographic performance engaged in]. If you do so infer, you must nevertheless consider all the evidence in the case in determining whether the State has proved beyond a reasonable doubt that the Defendant engaged in such conduct with knowledge of the character and content of the [child pornography [produced] [prepared]] [pornographic material [produced] [prepared]] [pornographic performance engaged in]. If you find beyond a reasonable doubt that the person who was [employed] [used] [contained] in the pornographic [material] [performance] was, at the time, a minor, you may, but are not required to, infer that the Defendant knew the person was a minor. If you do so infer, you must nevertheless consider all the evidence in the case in determining whether the State has proved beyond a reasonable doubt that the Defendant knew the person was a minor. Notes H.R.S. §§ 707-750(3), 702-206(2); HRE Rule 306(a)(3). State v. Mitchell, 88 Hawai'i 216, 965 P.2d 149 (App. 1998); State v. Tabigne, 88 Hawai'i 296, 966 P.2d 608 (1998). For definition of states of mind, see instruction: