Promoting Child Abuse in the Third Degree

Promoting Child Abuse in the Third Degree: H.R.S. § 707-752 [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 Third Degree. A person commits the offense of Promoting Child Abuse in the Third Degree if he/she, knowing or having reason to know its character and content, possesses [child pornography] [any [book] [magazine] [periodical] [film] [videotape] [computer disk] [electronically stored data] [material] that contains an image of child pornography] [any 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 Second 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 possessed [child pornography] [[a book] [a magazine] [a periodical] [a film] [a videotape] [a computer disk] [electronically stored data] [material] that contained an image of child pornography] [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 [child pornography] [[book] [magazine] [periodical] [film] [videotape] [computer disk] [electronically stored data] [material] that contained an image of child pornography] [pornographic material that [employed] [used] [contained] a minor [engaging] [assisting others to engage] in sexual conduct]. “Child pornography” means any pornographic photograph, film, video, picture, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, which depicts a minor engaging in sexual conduct, or which has been created, adapted, or modified to make it appear that an identifiable minor is engaging in sexual conduct. “Community standards” means the standards of the State of Hawaii. “Computer” means any electronic, magnetic, optical, electrochemical, or other high-speed data processing device performing logical, arithmetic, or storage functions, and includes all computer equipment connected or related to such a device in a computer system or computer network, but shall not include an automated typewriter or typesetter, a portable hand- held calculator, or other similar device. “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. “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. §§ 707-752, 702-206(2). For definition of states of mind, see instruction: For prima facie inference, see instruction 9.56.1. Inference: Promoting Child Abuse in the Third Degree: H.R.S. § 707-752(3) If you find beyond a reasonable doubt that the Defendant possessed [child pornography] [any [book] [magazine] [periodical] [film] [videotape] [computer disk] [electronically stored data] [material] that contained an image of child pornography] [any pornographic material 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 possessed that material with knowledge of its character and content. 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 possessed that material with knowledge of its character and content. If you find beyond a reasonable doubt that the person who was [employed] [used] [contained] in the pornographic material 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. §§ 707-752(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: