Granted, Hawaii is a long way from the mainland, but it’s hard to imagine that it’s this far from the mainstream.

An Oahu grand jury indicted 35-year-old Kramer Aoki last November on a third-degree sexual assault charge, a class C felony punishable by up to five years in prison. The indictment says that on Sept. 6, Aoki, as a law enforcement officer, knowingly subjected to sexual contact a person in custody.

Aoki is accused of placing his hand on the breast of a teenage girl he had pulled over for speeding. After the alleged incident, Aoki let the girl go with a warning.

One of the most despicable abuses of police power is the use of fear, or authority, to coerce sexual contact.  There are instances of cops forcing women to perform oral sex to get a pass on an arrest or traffic ticket. Others just rape women.  But amongst good cops, this sort of conduct is intolerable to most; there are lines that cops should never cross.  Then again, others in law enforcement tend to see such conduct as a perk of the job, under some twisted vision of cops being “sexy” and deserving the occasional coerced sex act for being such brave heroes.

In Aoki’s case, the victim was a teenager, which adds to the mix, as a particularly vulnerable person.  While it might be argued that groping her breast isn’t as bad as forcing oral sex or outright rape, to distinguish a sexual assault on such a basis is disingenuous. There is no sex act, none, that is in any way acceptable when performed by a police officer in the exercise of his authority.  Whether a breast groped or worse, it is inexcusable.

Except in Hawaii?

[Aoki] challenged the applicability of the charge against him because Aoki claims the girl was not in custody.

His lawyer Thomas Otake told Circuit Judge Glenn Kim, “A traffic stop is not custody.”

And the judge dismissed the charges against Aoki. The issue arises from the crime charged, sexual assault in the third degree as a police officer,  Hawaii Statutes 707-732(1)(e)(v), which provides:

(v) As a law enforcement officer as defined in section 710-1000(13),

knowingly subjects to sexual contact an imprisoned person, a person confined to a detention facility, a person committed to the director of public safety, a person residing in a private correctional facility operating in the State of Hawaii, or a person in custody, or causes the person to have sexual contact with the actor;

Based upon this language, the argument was grounded in whether a traffic stop is a custodial seizure.  Of course, nothing precluded the prosecution from charging, in the alternative, subsection (f):

(f) The person knowingly, by strong compulsion, has sexual contact with another person or causes another person to have sexual contact with the actor.

Apparently, Aoki was only charged under the cop prohibition, which requires custody.

Deputy City Prosecutor Lynn Costales said the girl was not under arrest, but she was not free to leave because Aoki had her driver license and vehicle registration when he touched her.

This is the oddity of traffic stops, a legal hybrid because it doesn’t fit neatly into the categories that existed before the automobile.  A traffic stop isn’t an arrest, though it is a seizure. But what it is not is custody, which is why a cop doesn’t have to give a driver Miranda warnings before asking, “do you know why I stopped you?” to get you to confess.

If this strikes you as inexplicable, that’s because it’s inexplicable.  Sure, there have been plenty of words murdered to explain this, but it’s all nonsense.  As everyone knows, the theory is “driving is a privilege, not a right,” which means that when you drive a car, you do so because the government has been kind enough to allow you to do so by giving you a driver’s license.  They’re just nice guys.

By taking the government up on its offer of kindness, you agree to abide by some rules that they would otherwise never be allowed to impose.  You must have your license and registration. You must have insurance. You must show them to a police officer upon demand. That’s the give-back for the government’s largesse.  After all, no one forces you to drive. You chose to do it, and you must abide the rules imposed for the privilege.

Bear in mind, these rules are developed at a time when things like driving a car aren’t considered a necessity of life.  We’re watching the same theory prevail when it comes to flying in a plane to Des Moines.  After all, you are free to not fly, and just hitch the horses to the Conestoga and make your way.  But no, you want to fly. Say hi to the TSA.

When 5-0 tells you to pull over and takes your license and registration, you clearly aren’t free to leave.  It is not, as the prosecutor suggests, merely because the cop happens to have his grimy hands on your license, as opposed to your breast, at the moment, but because if you drive away, he will chase you down and possibly shoot until you’re dead.

If you aren’t in custody, killing you for leaving is kinda hard to explain, but there is a lot of that in the law.  Judges just shut their eyes really tightly and spew as many platitudes as possible to make this appear rational when there is nothing rational about it.  But that’s law.

So technically, the ruling dismissing the sexual assault in the third degree against Aoki under subdivision (e)(v) is probably correct.  Aoki groped the teenaged girl he stopped using his authority as a police officer, but she was not “in custody” as the law would require.  Dismissal of this charge reflected a correct determination under the law, even if the judge might not have been so kind had such a technical reading of the law been proffered on behalf of anybody not wearing a shield.

But what can’t be explained is why Aoki wasn’t charged under any other subsection of sexual abuse in the third degree.  Well, unless nobody really wanted to see a cop convicted for a perk of the job.