Bill Text: HI SB1204 | 2023 | Regular Session | Introduced
Bill Title: Relating To Reducing The Harms In The Sex Trade.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2023-01-27 - Referred to HHS/JDC, WAM. [SB1204 Detail]
Download: Hawaii-2023-SB1204-Introduced.html
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THE SENATE |
S.B. NO. |
1204 |
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THIRTY-SECOND LEGISLATURE, 2023 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO REDUCING THE HARMS IN THE SEX TRADE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the State should revisit current laws governing prostitution and find ways to reduce harms. A review indicates that a number of these statutes harm individuals without any rational public purpose. Accordingly, those statutes violate the state constitution's guarantee of liberty. Although repealing a number of laws that do not address these issues might not in and of itself ameliorate them, that does not create a reason for the State to actively create harm to consenting adults. Moreover, leading anti-trafficking organizations, such as the Global Alliance Against Traffic in Women, and Amnesty International, recommend an approach that decriminalizes adult consensual acts in the sex trades. New Zealand has taken this path and shows little to no evidence of sex trafficking since their reforms were passed twenty years ago.
Fifty years ago, the legislature rewrote the old Hawaii rules governing prostitution. The findings of that legislature were that:
History has proven that prostitution is not going to be abolished either by penal legislation, nor the imposition of criminal sanctions, through the vigorous enforcement of such legislation. Yet the trend of modern thought on prostitution in this country is that "public policy" demands that the criminal law go on record against prostitution. [1] Defining this "public policy" is a difficult task. Perhaps it more correctly ought to be considered and termed "public demand"--a widespread community attitude which the penal law must take into account regardless of the questionable rationales upon which it is based.
A number of reasons have been advanced for the suppression of prostitution, the most often repeated of which are: "the prevention of disease, the protection of innocent girls from exploitation, and the danger that more sinister activities may be financed by the gains from prostitution."[2] These reasons are not convincing. Venereal disease is not prevented by laws attempting to suppress prostitution. If exploitation were a significant factor, the offense could be dealt with solely in terms of coercion. Legalizing prostitution would decrease the prostitute's dependence upon and connection with the criminal underworld and might decrease the danger that "organized crime" might be financed in part by criminally controlled prostitution.
Our study of public attitude in this area revealed the widespread belief among those interviewed that prostitution should be suppressed entirely or that it should be so restricted as not to offend those members of society who do not wish to consort with prostitutes or to be affronted by them. Making prostitution a criminal offense is one method of controlling the scope of prostitution and thereby protecting those segments of society which are offended by its open existence. This "abolitionist" approach is not without its vociferous detractors. There are those that contend that the only honest and workable approach to the problem is to legalize prostitution and confine it to certain localities within a given community. While such a proposal may exhibit foresight and practicality, the fact remains that a large segment of society is not presently willing to accept such a liberal approach. Recognizing this fact and the need for public order, the Code makes prostitution and its associate enterprises criminal offenses.
Since these words were written, many arguments countering them have been put forward and the laws have been amended numerous times. Yet, these earlier statements do not seem to have been contradicted.
The purpose of this Act is to decriminalize prostitution.
SECTION 2. Section 663J-2, Hawaii Revised Statutes, is amended by amending the definitions of "promoting prostitution", "prostitution", and "sex trafficking" to read as follows:
""Promoting
prostitution" means [promoting prostitution as provided in section
712-1203.] knowingly advancing or profiting from prostitution.
"Prostitution"
[has the same meaning as provided in section 712-1200.] means engaging
in, or agreeing or offering to engage in, sexual conduct with another person in
return for a fee or anything of value.
"Sex
trafficking" has the same meaning as provided in [section 712-1202.]
title 22 United States Code Annotated section 7102."
SECTION 3. Section 706-606.6, Hawaii Revised Statutes, is amended to read as follows:
"§706-606.6
Repeat violent and sexual offender; enhanced sentence. (1)
Notwithstanding any other provision of law to the contrary, any person
who is convicted of an offense under section 707-701.5, 707-702, 707-730,
707-731, 707-732, 707‑733.6, 707-750, 708-840, 712-1202, 712-1203, or
712-1209.1, after having been convicted on at least three prior and separate
occasions of an offense under section 707-701.5, 707-702, 707‑710,
707-711, 707‑730, 707-731, 707-732, 707-733.6, 707-750, 708-840, 712-1202,
[712-1203,] or 712-1209.1, or of an offense under federal law or the laws
of another state that is comparable to an offense under section 707-701.5,
707-702, 707‑710, 707-711, 707-730, 707-731, 707-732, 707-733.6, 707-750,
708-840, 712-1202, [712-1203,] or 712-1209.1, shall be sentenced to an
extended term of imprisonment as provided in section 706‑661.
(2) A conviction shall not be considered a prior offense unless the conviction occurred within the following time periods:
(a) For an offense under section 707-701.5,
707-702, 707‑730, 707-733.6, 707-750, 708-840, 712-1202, [712‑1203,]
or 712-1209.1, within the past twenty years from the date of the instant
offense;
(b) For an offense under section 707-710 or 707-731, within the past ten years from the date of the instant offense;
(c) For an offense under section 707-711 or 707-732, within the past five years from the date of the instant offense; or
(d) For an offense under federal law or the
laws of another state that is comparable to an offense under section 707-701.5,
707-702, 707-710, 707-711, 707-730, 707-731, 707-732, 707-733.6, 707-750,
708-840, 712‑1202, [712-1203,] or 712-1209.1, within the maximum
term of imprisonment possible under the appropriate jurisdiction."
SECTION 4. Section 712-1200, Hawaii Revised Statutes, is amended to read as follows:
"§712-1200 Prostitution. (1) A [person] minor commits the
offense of prostitution if the [person] minor engages in,
or agrees or offers to engage in, sexual conduct with another person in return
for a fee or anything of value.
[(2)
As used in this section:
"Minor" means a person who is
less than eighteen years of age.
"Sexual conduct" means "sexual
penetration", "deviate sexual intercourse", or "sexual
contact", as those terms are defined in section 707-700, or "sadomasochistic
abuse" as defined in section 707-752.
(3) Prostitution is a
petty misdemeanor; provided that if the person who commits the
offense under subsection (1) is a minor, prostitution is a violation.
(4) A person convicted
of committing the offense of prostitution as a petty misdemeanor shall be
sentenced as follows:
(a) For
the first offense, when the court has not deferred further proceedings pursuant
to chapter 853, a fine of no less than $500 but no more than $1,000 and the
person may be sentenced to a term of imprisonment of no more than thirty days
or probation; provided that in the event the convicted person defaults in
payment of the fine, and the default was not contumacious, the court may make
an order converting the unpaid portion of the fine to community service as
authorized by section 706‑605(1);
(b) For
any subsequent offense, a fine of no less than $500 but no more than $1,000 and
a term of imprisonment of thirty days or probation, without possibility of
deferral of further proceedings pursuant to chapter 853 and without possibility
of suspension of sentence; and
(c) For
the purpose of this subsection, if the court has deferred further proceedings
pursuant to chapter 853, and notwithstanding any provision of chapter 853 to
the contrary, the defendant shall not be eligible to apply for expungement
pursuant to section 831-3.2 until three years following discharge. A plea previously entered by a defendant
under section 853-1 for a violation of this section shall be considered a prior
offense.
(5) This section shall not apply to any
member of a police department,
a sheriff, or a law enforcement officer acting in the course and scope of
duties; provided that the member of a police department, sheriff, or law
enforcement officer is engaging in undercover operations; provided further that
under no circumstances shall sexual contact initiated by a member of a police
department, sheriff, or law enforcement officer; sexual penetration; or
sadomasochistic abuse be considered to fall within the course and scope of
duties.
(6)] (2) A minor may be taken into custody by any
police officer without order of the judge when there are reasonable grounds to
believe that the minor has violated subsection (1). The minor shall be released, referred, or
transported pursuant to section 571-31(b).
The minor shall be subject to the jurisdiction of the family court
pursuant to section 571-11(1), including for the purposes of custody,
detention, diversion, and access to services and resources."
SECTION 5. Section 712-1201, Hawaii Revised Statutes, is amended to read as follows:
"§712-1201 Advancing prostitution; profiting from
prostitution; definition of terms. In [sections] section
712‑1202 [and 712-1203]:
(1) A person engages in prostitution if the
person engages in, or agrees or offers to engage in, sexual conduct with
another person in return for a fee or anything of value.
(2) As used in this section:
(A) "Minor" means a person who
is less than eighteen years of age; and
(B) "Sexual conduct" means "sexual
penetration", "deviate sexual intercourse", or "sexual
contact", as those terms are defined in section 707-700, or "sadomasochistic
abuse" as defined in section 707-752.
[(1)]
(3) A
person "advances prostitution" if the person knowingly causes or aids
a person to commit or engage in prostitution, procures or solicits patrons for
prostitution, provides persons for prostitution purposes, permits premises to
be regularly used for prostitution purposes, operates or assists in the
operation of a house of prostitution or a prostitution enterprise, or engages
in any other conduct designed to institute, aid, or facilitate an act or
enterprise of prostitution;
[(2)]
(4) A
person "profits from prostitution" if the person accepts or receives
money, anything of value, or other property pursuant to an agreement or
understanding with any person whereby the person participates or is to
participate in the proceeds of prostitution activity; and
[(3)]
(5) The
definitions in subsections [(1)] (3) and [(2)] (4) shall
not include those engaged in conduct outlined in [section 712-1200 as the
prostituted person or section 712-1200.5 as the person engaged in commercial
sexual exploitation.] subsections (1) and (2)."
SECTION 6. Section 712-1209.1, Hawaii Revised Statutes, is amended by amending subsection (7) to read as follows:
"(7) For purposes of this section:
"Minor" means a person who is less than eighteen years
of age.
"Sexual conduct" [has the same meaning as in
section 712‑1200(2).] means "sexual penetration",
"deviate sexual intercourse", or "sexual contact", as those
terms are defined in section 707-700, or "sadomasochistic abuse" as
defined in section 707-752."
SECTION 7. Section 804-4, Hawaii Revised Statutes, is amended to read as follows:
"§804-4
When a matter of right.
(a) If the charge is for an
offense for which bail is allowable under section 804-3, the defendant may be
admitted to bail before conviction as a matter of right and under the least
restrictive conditions required to ensure the defendant's appearance and to
protect the public. [Except for
section 712-1207(7), bail shall be allowed for any person charged under section
712-1207 only subject to the mandatory condition that the person observe
geographic restrictions that prohibit the defendant from entering or remaining
on public property, in Waikiki and other areas in the State designated by
county ordinance during the hours from 6 p.m. to 6 a.m.; and provided further
that nothing contained in this subsection shall be construed as prohibiting the
imposition of stricter geographic restrictions under section 804-7.1.] The right to bail shall continue after
conviction of a misdemeanor, petty misdemeanor, or violation, and release on
bail may continue, in the discretion of the court, after conviction of a felony
until the final determination of any motion for a new trial, appeal, habeas
corpus, or other proceedings that are made, taken, issued, or allowed for the
purpose of securing a review of the rulings, verdict, judgment, sentence, or
other proceedings of any court or jury in or by which the defendant has been
arraigned, tried, convicted, or sentenced; provided that:
(1) No bail shall be allowed after conviction and prior to sentencing in cases where bail was not available under section 804-3, or where bail was denied or revoked before conviction; and
(2) No bail shall be allowed pending appeal
of a felony conviction where a sentence of imprisonment has been imposed[;
and
(3) No bail shall be allowed pending
appeal of a conviction for a violation of section 712-1207, unless the court
finds, based on the defendant's record, that the defendant may be admitted to
bail subject to the mandatory condition that the person observe geographic
restrictions that prohibit the defendant from entering or walking along the
public streets or sidewalks of Waikiki or other areas in the State designated
by county ordinance pursuant to section 712-1207 during the hours from 6 p.m.
to 6 a.m].
Notwithstanding any other provision of law to the contrary, any person who violates these bail restrictions shall have the person's bail revoked after hearing and shall be imprisoned forthwith.
(b) The court shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the court finds:
(1) By clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released; and
(2) That the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
If the
court makes these findings, the court shall order the release of the person in
accordance with section 804-7.1 under the least restrictive conditions required
to ensure the defendant's appearance and to protect the public. No defendant entitled to bail, whether bailed
or not, shall be subject, without the defendant's written consent, to the
operation of any sentence passed upon the defendant, while any proceedings to
procure a review of any action of the trial court or jury in the premises are
pending and undetermined, except as provided in section 641-14(a) [or
section 712-1207]."
SECTION 8. Section 804-5, Hawaii Revised Statutes, is amended to read as follows:
"§804-5
By whom allowed. In cases
where the punishment for the offense charged may be imprisonment for life not
subject to parole, or imprisonment for a term more than ten years with or
without fine, a judge or justice of a court of record, including a district
judge, shall be competent to admit the accused to bail, in conformity with
sections 804-3 to 804-6. In all other
cases, the accused may be so admitted to bail by any judge or justice of a
court of record, including a district judge, and in cases[, except under
section 712-1207,] where the punishment for the offense charged may not
exceed two years' imprisonment with or without fine, the sheriff, the sheriff's
deputy, the chief of police or any person named by the chief of police, or the
sheriff of Kalawao, regardless of the circuit within which the alleged offense
was committed, may admit the accused person to bail. The court shall impose conditions of release
or bail that are the least restrictive conditions required to ensure the
accused's appearance and to protect the public."
SECTION 9. Section 806-83, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:
"(a) Criminal charges may be instituted by written
information for a felony when the charge is a class C felony, except under:
(1) Section 159-28 (bribery related to the Hawaii Meat Inspection Act);
(2) Section
161-28 (bribery related to the Hawaii Poultry Inspection Act);
(3) Section
707-712.5 (assault against a law enforcement officer in the first degree);
(4) Section
707-716 (terroristic threatening in the first degree);
(5) Section
707-732 (sexual assault in the third degree);
(6) Section
707-741 (incest);
(7) Section
707-752 (promoting child abuse in the third degree);
(8) Section
708-880 (commercial bribery);
(9) Section
709-904.5 (compensation by an adult of juveniles for crimes);
(10) Section
710-1026.9 (resisting an order to stop a motor vehicle in the first degree);
(11) Section
710-1070 (bribery of or by a witness);
(12) Section
710-1071 (intimidating a witness);
(13) Section
710-1072.2 (retaliating against a witness);
(14) Section
710-1073 (bribery of or by a juror);
(15) Section
710-1075 (jury tampering);
(16) Section
710-1075.5 (retaliating against a juror);
(17) Section
711-1106.4 (aggravated harassment by stalking);
(18) Section
711-1110.9 (violation of privacy in the first degree);
[(19) Section
712-1208 (promoting travel for prostitution);
(20) Section
712-1209.5 (habitual commercial sexual exploitation);
(21)] (19) Section 712-1215 (promoting pornography for
minors);
[(22)] (20) Section 712-1218 (failure to maintain age
verification records of sexual performers);
[(23)] (21) Section 712-1218.5 (failure to maintain age
verification records of sexually exploited individuals); and
[(24)] (22) Section 712-1219 (failure to affix information
disclosing location of age verification records of sexual performers).
(b) Criminal charges may be instituted by written
information for a felony when the charge is a class B felony, except under:
(1) Section 707-720 (kidnapping);
(2) Section 707-731 (sexual assault in the second degree);
(3) Section 707-751 (promoting child abuse in the second degree);
(4) Section 708-841 (robbery in the second degree);
(5) Section 709-904.5 (compensation by an adult of juveniles for crimes; grade or class of offense increased);
(6) Section 710-1031 (intimidating a correctional worker);
(7) Section 710-1040 (bribery); and
(8) Section 710-1074 (intimidating a juror)[;
and
(9) Section 712-1203 (promoting
prostitution)]."
SECTION 10. Section 846E-1, Hawaii Revised Statutes, is amended by amending the definition of "sexual offense" to read as follows:
""Sexual offense"
means an offense that is:
(1) Set forth in section 707-730(1),
707-731(1), 707‑732(1), 707-733(1)(a), 707-733.6, [712-1200.5(4),]
or 712-1202(1), [or 712-1203(1),] but excludes conduct that is
criminal only because of the age of the victim, as provided in section
707-730(1)(b), or section 707-732(1)(b) if the perpetrator is under the age of
eighteen;
(2) An
act defined in section 707-720 if the charging document for the offense for
which there has been a conviction alleged intent to subject the victim to a
sexual offense;
(3) An
act that consists of:
(A) Criminal sexual conduct toward a minor,
including but
not limited to an offense set forth in section 707-759;
(B) Solicitation
of a minor who is less than fourteen years old to engage in sexual conduct;
(C) Use
of a minor in a sexual performance;
(D) Production,
distribution, or possession of child pornography chargeable as a felony under
section 707-750, 707-751, or 707-752;
(E) Electronic
enticement of a child chargeable under section 707-756 or 707-757 if the
offense was committed with the intent to promote or facilitate the commission
of another covered offense as defined in this section; or
(F) Commercial
sexual exploitation of a minor in violation of section 712-1209.1;
(4) A violation of privacy under section 711-1110.9;
(5) An
act, as described in chapter 705, that is an attempt, criminal solicitation, or
criminal conspiracy to commit one of the offenses designated in paragraphs (1)
through (4);
(6) A
criminal offense that is comparable to or that exceeds a sexual offense as
defined in paragraphs (1) through (5); or
(7) Any
federal, military, out-of-state, tribal, or foreign conviction for any offense
that under the laws of this State would be a sexual offense as defined in
paragraphs (1) through (6)."
SECTION 11. Section 846E-10, Hawaii Revised Statutes, is amended by amending subsections (c) and (d) to read as follows:
"(c) Tier 2 offenses. A covered offender who has maintained a clean
record for the previous twenty-five years, excluding any time the offender was
in custody or civilly committed, and who has substantially complied with the
registration requirements of this chapter for the previous twenty-five years,
or for the portion of that twenty-five years that this chapter has been
applicable, and who is not a repeat covered offender may petition the court, in
a civil proceeding, for termination of registration requirements; provided that
the covered offender's most serious covered offense is one of the following:
(1) Any offense set forth in section
707-730(1)(c), 707‑731(1)(c), 707-732(1)(c), 707-750, 707-751, or 712‑1202[,
or 712-1203(1)(b), as section 712-1203(1)(b) read before its amendment pursuant
to section 9 of Act 147, Session Laws of Hawaii 2008];
(2) An offense set forth in
section 707-720; provided that the charging document for the offense for which
there has been a conviction alleged intent to subject the victim to a sexual
offense;
(3) An offense set forth in
section 707-756 that includes an intent to promote or facilitate the commission
of another felony covered offense as defined in section 846E-1;
(4) An offense that is an
attempt, criminal solicitation, or criminal conspiracy to commit any of the
offenses in paragraph (1), (2), or (3);
(5) Any criminal offense that is
comparable to one of the offenses in paragraph (1), (2), (3), or (4); or
(6) Any federal, military,
out-of-state, tribal, or foreign offense that is comparable to one of the
offenses in paragraph (1), (2), (3), or (4).
(d) Tier 1 offenses. A covered offender who has maintained a clean record for the previous ten years, excluding any time the offender was in custody or civilly committed, and who has substantially complied with the registration requirements of this chapter for the previous ten years, or for the portion of that ten years that this chapter has been applicable, and who is not a repeat covered offender may petition the court, in a civil proceeding, for termination of registration requirements; provided that the covered offender's most serious covered offense is one of the following:
(1) Any offense set forth in section
707-732(1)(d), (e), or (f); 707-733(1)(a); 707-752; 707-759; 711-1110.9; [712‑1203(1);]
or 712-1209.1;
(2) An offense set forth in
section 707-721 or 707-722; provided that the offense involves unlawful
imprisonment of a minor by someone other than a parent;
(3) An offense set forth in
section 707-757 that includes an intent to promote or facilitate the commission
of another covered offense as defined in section 846E-1;
(4) An offense that is an
attempt, criminal solicitation, or criminal conspiracy to commit any of the
offenses in paragraph (1), (2), or (3);
(5) Any criminal offense that is
comparable to one of the offenses in paragraph (1), (2), (3), or (4);
(6) Any federal, military,
out-of-state, tribal, or foreign offense that is comparable to one of the offenses
in paragraph (1), (2), (3), or (4); or
(7) Any other covered offense
that is not specified in subsection (a) or (c) or paragraph (1), (2), (3), (4),
(5), or (6)."
SECTION 12. Section 853-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) This chapter shall not apply when:
(1) The offense charged involves the intentional, knowing, reckless, or negligent killing of another person;
(2) The offense charged is:
(A) A felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person; or
(B) A misdemeanor or petty misdemeanor that carries a mandatory minimum sentence and that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person;
provided that the prohibition in this paragraph shall not apply to offenses described in section 709‑906(18);
(3) The offense charged involves a conspiracy or solicitation to intentionally, knowingly, or recklessly kill another person or to cause serious bodily injury to another person;
(4) The offense charged is a class A felony;
(5) The offense charged is nonprobationable;
(6) The defendant has been convicted of any offense defined as a felony by the Hawaii Penal Code or has been convicted for any conduct that if perpetrated in this State would be punishable as a felony;
(7) The defendant is found to be a law violator or delinquent child for the commission of any offense defined as a felony by the Hawaii Penal Code or for any conduct that if perpetrated in this State would constitute a felony;
(8) The defendant has a prior conviction for a felony committed in any state, federal, or foreign jurisdiction;
(9) A firearm was used in the commission of the offense charged;
(10) The defendant is charged with the distribution of a dangerous, harmful, or detrimental drug to a minor;
(11) The defendant has been charged with a felony offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior offense, regardless of whether the period of deferral has already expired;
(12) The defendant has been charged with a misdemeanor offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior felony, misdemeanor, or petty misdemeanor for which the period of deferral has not yet expired;
(13) The offense charged is:
(A) Escape in the first degree;
(B) Escape in the second degree;
(C) Promoting prison contraband in the first degree;
(D) Promoting prison contraband in the second degree;
(E) Bail jumping in the first degree;
(F) Bail jumping in the second degree;
(G) Bribery;
(H) Bribery of or by a witness;
(I) Intimidating a witness;
(J) Bribery of or by a juror;
(K) Intimidating a juror;
(L) Jury tampering;
(M) Promoting prostitution;
(N) Abuse of family or household member except as provided in paragraph (2) and section 709‑906(18);
(O) Sexual assault in the second degree;
(P) Sexual assault in the third degree;
(Q) A violation of an order issued pursuant to chapter 586;
(R) Promoting child abuse in the second degree;
(S) Promoting child abuse in the third degree;
(T) Electronic enticement of a child in the
first degree;
(U) Electronic enticement of a child in the second degree;
[(V) Commercial sexual exploitation pursuant to section 712-1200.5;
(W) Street prostitution and commercial sexual exploitation under
section 712‑1207(1)(b) or (2)(b);
(X) Commercial sexual exploitation near schools or public parks
under section 712-1209;
(Y)] (V) Commercial
sexual exploitation of a minor under section 712‑1209.1;
[(Z) Habitual
commercial sexual exploitation under section 712‑1209.5;
(AA)] (W) Violation of privacy in the first
degree under section 711-1110.9;
[(BB)]
(X) Violation
of privacy in the second degree under section 711-1111(1)(d), (e), (f), (g), or
(h);
[(CC)]
(Y) Habitually
operating a vehicle under the influence of an intoxicant under section 291E‑61.5(a);
[(DD)]
(Z) Promoting
gambling in the first degree; or
[(EE)]
(AA) Promoting
gambling in the second degree;
(14) The defendant has been charged with:
(A) Knowingly
or intentionally falsifying any report required under part XIII of chapter 11,
with the intent to circumvent the law or deceive the campaign spending
commission; or
(B) Violating
section 11-352 or 11-353; or
(15) The defendant holds a commercial driver's
license and has been charged with violating a traffic control law, other than a
parking law, in connection with the operation of any type of motor vehicle."
SECTION 13. Section 712-1200.5, Hawaii Revised Statutes, is repealed.
["[§712-1200.5] Commercial sexual exploitation. (1) A
person commits the offense of commercial sexual exploitation if the person
provides, agrees to provide, or offers to provide a fee or anything of value to
another to engage in sexual conduct.
(2) As used in this section, "sexual conduct"
has the same meaning as in section 712‑1200(2).
(3) Except as provided in subsection (4),
commercial sexual exploitation is a petty misdemeanor.
(4) Commercial sexual exploitation is a class C
felony if the person who commits the offense under subsection (1) does so in
reckless disregard of the fact that the person exploited is a victim of sex
trafficking.
(5) A person convicted of committing the offense
of commercial sexual exploitation as a petty misdemeanor shall be sentenced as
follows:
(a) For the first offense, a fine of no
less than $500 but no more than $1,000 and the person may be sentenced to a
term of imprisonment of no more than thirty days or probation; provided that in
the event the convicted person defaults in payment of the fine, and the default
was not contumacious, the court may order conversion of the unpaid portion of
the fine to community service as authorized by section 706-605(1);
(b) For any subsequent offense, a fine
of no less than $500 but no more than $1,000 and a term of imprisonment or
probation of no more than thirty days, without possibility of suspension of
sentence; and
(c) For purposes of this subsection, the
court may impose as a condition of probation that the defendant complete a
course of exploitation intervention classes; provided that the court shall only
impose the condition for one term of probation.
SECTION 14. Section 712-1203, Hawaii Revised Statutes, is repealed.
["§712-1203 Promoting prostitution. (1) A
person commits the offense of promoting prostitution if the person knowingly
advances or profits from prostitution.
(2) Promoting prostitution is a class B felony."]
SECTION 15. Section 712-1206, Hawaii Revised Statutes, is repealed.
["[§712-1206] Loitering
for the purpose of engaging in or advancing prostitution. (1)
For the purposes of this section, "public place" means any
street, sidewalk, bridge, alley or alleyway, plaza, park, driveway, parking lot
or transportation facility or the doorways and entrance ways to any building
which fronts on any of the aforesaid places, or a motor vehicle in or on any
such place.
(2) Any person who remains or wanders about in a
public place and repeatedly beckons to or repeatedly stops, or repeatedly
attempts to stop, or repeatedly attempts to engage passers-by in conversation,
or repeatedly stops or attempts to stop motor vehicles, or repeatedly
interferes with the free passage of other persons for the purpose of committing
the crime of prostitution as that term is defined in section 712-1200, shall be
guilty of a violation.
(3) Any person who remains or wanders about in a
public place and repeatedly beckons to, or repeatedly stops, or repeatedly
attempts to engage passers-by in conversation, or repeatedly stops or attempts
to stop motor vehicles, or repeatedly interferes with the free passage of other
persons for the purpose of committing the crime of advancing prostitution as
that term is defined in section 712-1201(1) is guilty of a petty misdemeanor."]
SECTION 16. Section 712-1207, Hawaii Revised Statutes, is repealed.
["§712-1207 Street prostitution and commercial sexual
exploitation; designated areas.
(1) It shall be unlawful for any
person within the boundaries of Waikiki and while on any public property to:
(a) Offer or agree to engage in sexual
conduct with another person in return for a fee or anything of value; or
(b) Provide, agree to provide, or offer
to provide a fee or anything of value to another person to engage in sexual
conduct.
(2)
It shall be unlawful for any person within the boundaries of other areas
in this State designated by county ordinance pursuant to subsection (3), and
while on any public property to:
(a) Offer or agree to engage in sexual conduct
with another person in return for a fee or anything of value; or
(b) Provide, agree to provide, or offer
to provide a fee or anything of value to another person to engage in sexual
conduct.
(3) Upon a recommendation of the chief of police
of a county, that county may enact an ordinance that:
(a) Designates areas, each no larger
than three square miles, as zones of significant prostitution-related activity
that is detrimental to the health, safety, or welfare of the general public; or
(b) Alters the boundaries of any
existing area under paragraph (a);
provided that not more than four
areas may be designated within the State.
(4) Notwithstanding any law to the contrary, any
person violating this section shall be guilty of a petty misdemeanor and shall
be sentenced to a mandatory term of thirty days imprisonment. The term of imprisonment shall be imposed
immediately, regardless of whether the defendant appeals the conviction, except
as provided in subsection (5).
(5) As an option to the mandatory term of thirty
days imprisonment, if the court finds the option is warranted based upon the
defendant's record, the court may place the defendant on probation for a period
not to exceed six months, subject to the mandatory condition that the defendant
observe geographic restrictions that prohibit the defendant from entering or
remaining on public property, in Waikiki and other areas in the State
designated by county ordinance during the hours from 6 p.m. to 6 a.m. Upon any violation of the geographic restrictions
by the defendant, the court, after hearing, shall revoke the defendant's
probation and immediately impose the mandatory thirty-day term of
imprisonment. Nothing contained in this
subsection shall be construed as prohibiting the imposition of stricter
geographic restrictions under section 706-624(2)(h).
(6) Any person charged under this section may be
admitted to bail, pursuant to section 804-4, subject to the mandatory condition
that the person observe geographic restrictions that prohibit the defendant
from entering or remaining on public property, in Waikiki and other areas in
the State designated by county ordinance during the hours from 6 p.m. to 6
a.m. Notwithstanding any other provision
of law to the contrary, any person who violates these bail restrictions shall
have the person's bail revoked after hearing and shall be imprisoned
forthwith. Nothing contained in this
subsection shall be construed as prohibiting the imposition of stricter
geographic restrictions under section 804-7.1.
(7) Notwithstanding any other law to the
contrary, a police officer, without warrant, may arrest any person when the
officer has probable cause to believe that the person has committed a violation
of subsection (5) or (6), and the person shall be detained, without bail, until
the hearing under the appropriate subsection can be held, which hearing shall
be held as soon as reasonably practicable.
(8) For purposes of this section:
"Area"
means any zone within a county that is defined with specific boundaries and
designated as a zone of significant prostitution by this section or a county
ordinance.
"Public
property" includes any street, highway, road, sidewalk, alley, lane,
bridge, parking lot, park, or other property owned or under the jurisdiction of
any governmental entity or otherwise open to the public.
"Sexual
conduct" has the same meaning as in section 712‑1200(2).
"Waikiki"
means that area of Oahu bounded by the Ala Wai canal, the ocean, and Kapahulu
avenue.
(9) This section shall apply to all counties;
provided that if a county enacts an ordinance to regulate street prostitution
and commercial sexual exploitation, other than an ordinance designating an area
as a zone of significant prostitution-related activity, the county ordinance
shall supersede this section and no person shall be convicted under this
section in that county."]
SECTION 17. Section 712-1208, Hawaii Revised Statutes, is repealed.
["[§712-1208] Promoting travel for prostitution. (1) A
person commits the offense of promoting travel for prostitution if the person
knowingly sells or offers to sell travel services that include or facilitate
travel for the purpose of engaging in what would be prostitution if occurring
in the State.
(2) "Travel services" has the same
meaning as in section 468L-1.
(3) Promoting travel for prostitution is a class
C felony."]
SECTION 18. Section 712-1209, Hawaii Revised Statutes, is repealed.
["§712-1209 Commercial sexual exploitation near schools
or public parks. (1)
A person commits the offense of commercial sexual exploitation near
schools or public parks if, within seven hundred fifty feet of a school or
public park, the person provides, agrees to provide, or offers to provide a fee
or anything of value to another person to engage in sexual conduct.
(2) Commercial sexual exploitation near schools
or public parks is a misdemeanor.
(3) For purposes of this section:
"School"
has the same meaning as in section 712-1249.6(6).
"Sexual
conduct" has the same meaning as in section 712‑1200(2)."]
SECTION 19. Section 712-1209.5, Hawaii Revised Statutes, is repealed.
["§712-1209.5 Habitual commercial sexual exploitation. (1)
A person commits the offense of habitual commercial sexual exploitation
if the person is a habitual commercial sexual exploitation offender and
provides, agrees to provide, or offers to provide a fee or anything of value to
another person to engage in sexual conduct.
(2)
For the purposes of this section, a person has the status of a "habitual
commercial sexual exploitation offender" if the person, at the time of the
conduct for which the person is charged, had two or more convictions within ten
years of the instant offense for:
(a) Commercial sexual exploitation, in
violation of section 712-1200.5;
(b) Street prostitution and commercial
sexual exploitation, in violation of section 712-1207(1)(b) or (2)(b);
(c) Habitual commercial sexual
exploitation, in violation of this section;
(d) An offense of this jurisdiction or
any other jurisdiction that is comparable to one of the offenses in paragraph
(a), (b), or (c); or
(e) Any combination of the offenses in
paragraph (a), (b), (c), or (d).
A
conviction for purposes of this section is a judgment on the verdict or a
finding of guilt, or a plea of guilty or nolo contendere. The convictions shall have occurred on
separate dates and be for separate incidents on separate dates. At the time of the instant offense, the
conviction shall not have been expunged by pardon, reversed, or set aside.
(3)
Habitual commercial sexual exploitation is a class C felony."]
SECTION 20. Section 712-1209.6, Hawaii Revised Statutes, is repealed.
["§712-1209.6 Prostitution;
motion to vacate conviction. (1) A person convicted of committing the offense
of prostitution under section 712-1200, loitering for the purpose of engaging
in or advancing prostitution under section 712‑1206(2), street
prostitution and commercial sexual exploitation in designated areas under
section 712-1207(1)(a) or (2)(a), or convicted of a lesser offense when
originally charged with a violation of section 712-1200, 712-1206(2), or
712-1207(1)(a) or (2)(a), may file a motion to vacate the conviction if the
defendant is not subsequently convicted of any offense under the Hawaii Penal
Code within three years after the date of the original conviction.
(2) The court shall hold a hearing on a motion
filed under this section to review the defendant's record over the three years
after the date of the original conviction under section 712-1200, 712-1206(2),
or 712-1207(1)(a) or (2)(a) or conviction of a lesser offense when originally
charged with a violation of any of those sections, and if the court finds that
the defendant has not been convicted of any offense under the Hawaii Penal Code
within this three year period, the court shall vacate the conviction."]
PART II
SECTION 21. The purpose of this part is to increase the civil remedies of sex trafficking victims.
SECTION 22. Section 663J-3, Hawaii Revised Statutes, is amended to read as follows:
"§663J-3 Cause of action for coercion into prostitution or sex trafficking. (a) An individual has a cause of action against a person who:
(1) Coerced the individual into prostitution or to remain in prostitution, or subjected the individual to sex trafficking;
(2) Used coercion to collect or receive any of the individual's earnings derived from prostitution or from being the subject of sex trafficking; or
(3) Hired, or attempted to hire the individual to engage in prostitution, when a reasonable person would believe that the individual was coerced into prostitution by another person or was being subjected to sex trafficking.
(b) The attorney general may assist or represent an
individual in a cause of pursuant to this chapter."
SECTION 23. Section 663J-5, Hawaii Revised Statutes, is amended to read as follows:
"§663J-5 Damages. (a) An individual entitled to bring an action under section 663J-3 may recover all of the following damages:
(1) Economic damages proximately caused by coercion into prostitution or being the subject of sex trafficking;
(2) Noneconomic damages proximately caused by coercion into prostitution or being the subject of sex trafficking;
(3) Exemplary damages;
(4) Reasonable attorney's fees; and
(5) Costs of suit, including reasonable expenses for expert testimony.
(b) Subject to agreement by the attorney general, the court may order that any monetary damages awarded pursuant to this section be paid from the general fund in an amount not to exceed the criminal fines paid by the defendant for any criminal conviction of the defendant who trafficked the individual entitled to bring action under section 663J-3 if the individual entitled to bring action under section 663J-3 previously agreed to provide evidence leading to the conviction of the defendant.
(b) Subject to agreement by the attorney general,
the court may order that any assets of the defendant seized by the State related
to any criminal conviction of the defendant who trafficked the individual
entitled to bring action under section 663J-3 be awarded to the individual
entitled to bring action under section 663J-3."
SECTION 24. Section 663J-7, Hawaii Revised Statutes, is amended to read as follows:
"§663J-7
Statute of limitations. [(a)] A claim under this chapter may [not]
be brought against a person [more than six years] at any time
after an act of promoting prostitution by coercion or sex trafficking by that
person.
[(b) The limitation period provided for in this
chapter is tolled:
(1) During the minority of the
individual who engages in prostitution; or
(2) Any time there is a criminal offense
investigation being actively conducted against the defendant by a governmental
agency or there is a criminal offense charge, information, or indictment
pending against the defendant.]"
PART III
SECTION 25. The attorney general shall require the prosecutor of the applicable county to file a written motion or application with the court of competent jurisdiction requesting the court to expunge the conviction of each currently living person previously convicted under section 712-1200, 712-1200.5, 712-1203, 712-1206, 712-1207, 712-1208, 712-1209, or 712-1209.5, Hawaii Revised Statutes.
SECTION 26. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2023-2024 and the same sum or so much thereof as may be necessary for fiscal year 2024-2025 for the county prosecutors to file written motions or applications pursuant to this part. The sums appropriated shall be distributed as follows:
County of Hawaii $
County of Kauai $
County of Maui $
City and county of Honolulu $
The sums appropriated shall be expended by the respective counties for the purposes of this part.
PART IV
SECTION 27. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION
28. This Act shall
take effect upon its approval; provided that:
(1) The
amendments made to section
853-4, Hawaii Revised Statutes, shall not be repealed when that section
is repealed and reenacted on June 30, 2026, by Act 19, Session Laws of Hawaii
2020; and
(2) Section
26 of this Act shall take effect on July 1, 2023.
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INTRODUCED BY: |
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Report Title:
Prostitution; Criminal; Decriminalization; Attorney General; Prosecutor; Appropriation
Description:
Decriminalizes
prostitution. Increases the rights for
victims of sex trafficking. Requires the
county prosecutors to file motions or applications to expunge certain
prostitution convictions. Appropriates
moneys.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
