With the enactment of Senate Bill 281 last week, local prosecutors are now able to seek maximum penalties for those who perpetrate the unthinkable.

What You Need To Know

  • SB 281, now Act 147, formally prohibits the offense of torture as a class A felony, a first for the state
  • The bill was introduced on behalf of the Honolulu Department of the Prosecuting Attorney to rectify what had been a glaring shortcoming in state law
  • A report by the House Committee on Judiciary and Hawaiian Affairs noted that under existing law, the state was only able to punish torture as an aggravating circumstance for murder, and only if the prosecution could prove that the torture inflicted was "unnecessary"
  • Prior to final legislative approval, a conference committee amended the bill to establish “poverty, destitution or lack of financial means” as a defense against the charge of torture

SB 281, now Act 147, formally prohibits the offense of torture as a class A felony, a first for the state.

The bill was introduced on behalf of the Honolulu Department of the Prosecuting Attorney to rectify what had been a glaring shortcoming in state law.

As the bill noted, “many forms of cruel and degrading sadism are inadequately addressed under criminal law. Some acts occur during aggravated kidnappings or following repeated assaults. Other acts, such as starvation or electrocution, may inflict immense suffering without technically causing bodily harm. The common denominator for torture is the pervasive physical and psychological control exercised over the victim by the abuser.”

Under the new law, a charge of torture may be applied when a person knowingly causes serious bodily injury to a person under their custody or physical control; or when a person causes serious or substantial bodily injury to another person and the accused has previously engaged in a pattern or practice of physically abusing the other person. The offense also occurs if an individual subjects a minor or vulnerable person to one of numerous qualifying acts (including strangling, biting, branding, burning, electrocuting, suspending, starving, drugging, restricting necessary bodily functions and forcing the victim to live in unsuitable conditions) on three or more occasions over two years.

“Until we submitted this bill as part of our legislative package, our state had inadequate laws to deal with perpetrators who use torture against children and vulnerable persons,” said Prosecuting Attorney Steve Alm. “Our state needed this law to protect those who are vulnerable and unable to protect themselves. Across the state, prosecutors have seen heinous crimes involving children who suffered acts of torture committed against them by their parents or those who have a duty to protect them. The laws that we had to fight these crimes did not adequately address the criminal conduct exhibited in these cases.”

Lawmakers were motivated to act following a string of recent high-profile cases involving extreme abuse and neglect leading to the death of young children, including: Azaeliyah Pili-Ah You, 11, who died in 2023 after suffering horrific abuse and neglect allegedly at the hands of her adoptive mother; Geanna Bradley, 10, whose autopsy revealed prolonged abuse, starvation, physical restraint (with duct tape) and neglect; and Sarai Perez-Rivera, 3, who died from severe and deliberate dehydration and starvation.

A report by the House Committee on Judiciary and Hawaiian Affairs noted that under existing law, the state could only punish torture as an aggravating circumstance for murder, and only if the prosecution could prove that the torture inflicted was “unnecessary.”

“Your Committee also finds that in 2024, there were several cases involving the torture of children; however, existing laws provided no framework to charge and penalize the perpetrators appropriately,” the report stated. “Your Committee believes that it is essential to distinguish between abuse and torture, as they differ in severity, and the penalties should reflect that distinction.”

The measure was supported by the Honolulu Police Department; Hawaii County Police Department; multiple divisions of the Honolulu Office of the Prosecuting; the Honolulu Fire Department; the Hawaii County Office of the Prosecuting; and the Hawaii State Chapter of Children’s Justice Centers.

The state Office of the Public Defender opposed specific provisions of the bill that it said reclassify existing lesser offenses based on language that is confusing and that does not give adequate notice regarding what is prohibited. The office also objected to the inclusion of depriving a minor or vulnerable person of necessary food, water or clothing as a form of torture because it did not allow consideration of the accused’s financial ability to provide these things.

Prior to final legislative approval, a conference committee amended the bill to establish “poverty, destitution or lack of financial means” as a defense against the charge of torture.

Michael Tsai covers local and state politics for Spectrum News Hawaii. He can be reached at michael.tsai@charter.com.