§705-523 Immunity, irresponsibility, or incapacity of a party to criminal conspiracy. (1) A person shall not be liable under section 705-520 for criminal conspiracy if under sections 702-224(1) and (2) and 702-225(1) he would not be legally accountable for the conduct of the other person.
(2) It is not a defense to a prosecution under section 705-520 that a person with whom the defendant conspires could not be guilty of committing the crime because:
(a) He is, by definition of the offense, legally incapable in an individual capacity of committing the offense;
(b) He is penally irresponsible or has an immunity to prosecution or conviction for the commission of the crime;
(c) He is unaware of the criminal nature of the conduct in question or of the defendant's criminal intent; or
(d) He does not have the state of mind sufficient for the commission of the offense in question.
(3) It is not a defense to a prosecution under section 705-520 that the defendant is, by definition of the offense, legally incapable in an individual capacity of committing the offense that is the object of the conspiracy. [L 1972, c 9, pt of §1]
COMMENTARY ON §705-523
The problems arising out of possible immunity, irresponsibility, or incapacity of a person to a criminal conspiracy are dealt with essentially in the commentary on §705-511 (dealing with immunity, irresponsibility, or incapacity of a party to criminal solicitation). This section is intended to resolve these problems should they arise in a conspiracy context.
This section has no counterpart in previous Hawaii law. Other jurisdictions have held that there can be no conspiracy in such situations because a conspiracy, as an agreement of two or more persons, requires at least two guilty conspirators.[1] In keeping with the unilateral approach to conspiracy of this Code, however, it is evident that the danger of the conspiracy arising from collective joint action remains essentially the same whether or not one of the conspirators cannot be successfully prosecuted. Moreover, one of the principal reasons for imposing penal liability in the area of inchoate crimes, i.e., the unequivocal presence of a strong intent to commit a crime, is present regardless of the co-conspirator's innocence, incapacity, or irresponsibility.2
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§705-523 Commentary:
1. Prop. Mich. Rev. Cr. Code, comments at 102.
2. Id.; see also commentary on §705-520.