HB2765

SECTION 1. Human trafficking is a worldwide form of exploitation in which men, women, and children are bought, sold, and held against their will in slave-like conditions. People are trafficked and forced to work in the commercial sex trade, sweatshops, agricultural settings, domestic service, and other types of servitude. In addition to the tremendous personal damage suffered by individual trafficking victims, this global crime has broad societal repercussions. It fuels criminal networks, imposes public health costs, and erodes government authority.

Human trafficking occurs worldwide and often involves transnational criminal organizations, violations of labor and immigration codes, and government corruption. Although their circumstances vary, fraud, force, or coercion typically distinguish trafficking victims from people who are smuggled. Moreover, most trafficking cases follow the same pattern: people are abducted or recruited in the country of origin, transferred through transit regions, and then exploited in the destination country. People may also be trafficked within the borders of their country of residence.

Trafficking victims also include agricultural workers who are brought into the United States; held in crowded, unsanitary conditions; threatened with violence if they attempt to leave; given no or very low pay; and kept under constant surveillance.

Currently, the United States government is working to address this issue through funding and programming designed to prevent trafficking, prosecute traffickers, and protect victims through the Trafficking Victims Protection Act of 2000 and the reauthorization and further refinement of this act in 2003 and 2005.

The Trafficking Victims Protection Act is used successfully to prosecute human traffickers and to provide services for and to protect the rights of trafficked persons. State and local authorities may encounter victims of trafficking while conducting routine arrests; inspecting buildings, factories, and farms; operating fire, rescue, and medical emergency services; and working with child abuse and neglect cases. Furthermore, often members of the general public have identified human trafficking victims. As the victims' neighbors, fellow worshipers, or others in the community notice that something does not seem right with the victims' circumstances, they have made the reports that ultimately resulted in a criminal investigation.

Currently, thirty-three states have passed anti-trafficking laws that specifically define and criminalize the act of trafficking in persons. However, unlike other states that have passed legislation similar to the Trafficking Victims Protection Act, Hawaii has distinct case law that would make the establishment of separately defined anti-trafficking criminal provisions difficult. Specifically, because Hawaii's criminal laws already provide for offenses that may constitute human trafficking, such as kidnapping, extortion, and promoting prostitution, a separate human trafficking offense would likely lead to overlap with existing offenses. Such an overlap raises concerns that the proposed higher grade offense will violate the "Modica Rule". In State v. Modica, 58 Haw. 249, 567 P.2d 420 (1977), the Hawaii supreme court stated that, "where the same act committed under the same circumstances is punishable either as a felony or as a misdemeanor, under either of two statutory provisions, and the elements of proof essential to either conviction are exactly the same, a conviction under the felony statute would constitute a violation of the defendant's rights to due process and the equal protection of the laws". This rule applies not only to felonies and misdemeanors, but also to any crimes with differing grades of offenses. In a Modica type of situation, the prosecutors would be compelled to prosecute under the lesser grade offense. Therefore, when a proposed human trafficking crime and an existing penal code crime would require the same elements of proof, the prosecution would be required to prosecute the lesser charge.

To ensure that trafficking crimes are properly prosecuted and not downgraded based upon the existence of an identical, lesser-grade offense, this Act amends the existing criminal statutes, specifically the kidnapping, extortion, and promoting prostitution statutes, that are likely to be used to prosecute human trafficking cases. In addition, the Act creates the new offense of sexual exploitation of a minor. It is the intent of this Act that a perpetrator be held strictly liable with respect to the attendant circumstance of the victim's age in cases involving sexual exploitation of a minor or promoting prostitution in the first degree involving a minor. These provisions would enable prosecution of human trafficking offenses under Hawaii law in a manner that is roughly equivalent to prosecutions under the Trafficking Victims Protection Act thus facilitating the successful prosecution of these heinous offenses.

This Act also amends section 351-32, Hawaii Revised Statutes, to include sexual exploitation of a minor and promoting prostitution in the first degree, so that the victims may be eligible for compensation from the crime victim compensation commission. The intent of this Act is to establish eligibility for crime victims' compensation for all human trafficking victims whose cases occur within the State of Hawaii. Further, this Act amends the definition of "racketeering activity" in section 842-1, Hawaii Revised Statutes, to include sexual exploitation of a minor.

In addition, this Act improves the protections for minors by eliminating the distinction within the promoting prostitution statute between minors under sixteen and minors under eighteen, thus mirroring provisions of the Trafficking Victims Protection Act. Promoting prostitution of any minor is human trafficking. This elevates the penalty for promoting prostitution of sixteen- and seventeen-year-olds to the same level that currently exists for all other minors. It also changes the term "prostitutes" in section 712-1203(a), Hawaii Revised Statutes, "promoting prostitution in the second degree," to "prostituted persons," as trafficking victims are not "prostitutes" voluntarily.

SECTION 2. Chapter 707, Hawaii Revised Statutes, is amended by adding to part VI a new section to be appropriately designated and to read as follows:

"§707- Sexual exploitation of a minor. (1) A person commits the offense of sexual exploitation of a minor if the person knowingly or recklessly:

(a) Causes, entices, persuades, induces, or otherwise aids a minor to engage in activity as an erotic or nude massager or exotic or nude dancer; or

(b) Engages in conduct designed to institute, aid, or facilitate an act or enterprise whereby a minor engages in activity as an erotic or nude massager or exotic or nude dancer; or

(c) Accepts or receives money or other property pursuant to an agreement or understanding whereby the person participates or is to participate in the proceeds resulting from a minor engaging in activity as an erotic or nude massager or exotic or nude dancer; or

(d) Recruits, entices, provides, or obtains a minor knowing that the minor will engage in activity as an erotic or nude massager or exotic or nude dancer.

(2) In addition to other remedies that may be provided by law, any property used or intended to be used to facilitate the commission of the offense of sexual exploitation of a minor, proceeds derived from that offense, or property acquired or maintained, in whole or in part, with proceeds of that offense may be forfeited to the State subject to the requirements of chapter 712A.

(3) As used in this section:

"Erotic or nude massager" means a nude person providing massage services with or without a license.

"Exotic or nude dancer" means a person performing, dancing, or entertaining in the nude and includes patrons participating in a contest or receiving instruction in nude dancing.

"Minor" means any person less than eighteen years of age.

"Nude" means unclothed or in attire including, but not limited to, sheer or see-through attire, so as to expose to view any portion of the pubic hair, anus, cleft of the buttocks, genitals, or any portion of the female breast below the top of the areola.

(4) Sexual exploitation of a minor is a class B felony."

SECTION 3. Section 351-32, Hawaii Revised Statutes, is amended to read as follows:

"§351-32 Violent crimes. The crimes to which part III of this chapter applies are the following and no other:

(1) Murder in the first degree (section 707-701);

(2) Murder in the second degree (section 707-701.5);

(3) Manslaughter (section 707-702);

(4) Negligent homicide in the first degree (section 707-702.5);

(5) Negligent homicide in the second degree (section 707-703);

(6) Negligent injury in the first degree (section 707-705);

(7) Negligent injury in the second degree (section 707-706);

(8) Assault in the first degree (section 707-710);

(9) Assault in the second degree (section 707-711);

(10) Assault in the third degree (section 707-712);

(11) Kidnapping (section 707-720);

(12) Sexual assault in the first degree (section 707-730);

(13) Sexual assault in the second degree (section 707-731);

(14) Sexual assault in the third degree (section 707-732);

(15) Sexual assault in the fourth degree (section 707-733);

(16) Abuse of family [or] household member (section 709-906); [~~and~~]

(17) Sexual exploitation of a minor (section 707- );

(18) Promoting prostitution in the first degree (section 712-1202); and

[~~(17)~~] (19) Terrorism, as defined in Title 18 United States Code section 2331."

SECTION 4. Section 707-720, Hawaii Revised Statutes, is amended to read as follows:

"§707-720 Kidnapping. (1) A person commits the offense of kidnapping if the person intentionally or knowingly restrains another person with intent to:

(a) Hold that person for ransom or reward;

(b) Use that person as a shield or hostage;

(d) Inflict bodily injury upon that person or subject that person to a sexual offense;

(e) Terrorize that person or a third person; [or]

(f) Interfere with the performance of any governmental or political function[.]; or

(g) Unlawfully obtain the labor or services of that person, regardless of whether related to the collection of a debt.

(2) As used in this section:

"Labor" means work of economic or financial value.

"Services" means a relationship between a person and the actor in which the person performs activities under the supervision of or for the benefit of the actor. Prostitution-related and obscenity-related activities as set forth in chapter 712 are forms of "services" under this section. Nothing in this section shall be construed to legitimize or legalize prostitution.

[~~(2)~~] (3) Except as provided in subsection [~~(3),~~] (4), kidnapping is a class A felony.

[~~(3)~~] (4) In a prosecution for kidnapping, it is a defense which reduces the offense to a class B felony that the defendant voluntarily released the victim, alive and not suffering from serious or substantial bodily injury, in a safe place prior to trial."

SECTION 5. Section 707-721, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of unlawful imprisonment in the first degree if the person knowingly restrains another person[:

~~(a)~~ ~~Under~~] under circumstances which expose the person to the risk of serious bodily injury[~~; or~~

~~(b)~~ ~~In a condition of involuntary servitude~~]."

SECTION 6. Section 707-764, Hawaii Revised Statutes, is amended to read as follows:

"§707-764 Extortion. A person commits extortion if the person does any of the following:

(1) Obtains, or exerts control over, the property, labor, or services of another with intent to deprive another of property, labor, or services by threatening by word or conduct to:

(a) Cause bodily injury in the future to the person threatened or to any other person;

(b) Cause damage to property or cause damage, as defined in section 708-890, to a computer, computer system, or computer network;

(d) Commit a penal offense;

(e) Accuse some person of any offense or cause a penal charge to be instituted against some person;

(f) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt, or ridicule, or to impair the threatened person's credit or business repute;

(g) Reveal any information sought to be concealed by the person threatened or any other person;

(h) Testify or provide information or withhold testimony or information with respect to another's legal claim or defense;

(i) Take or withhold action as a public servant, or cause a public servant to take or withhold such action;

(j) Bring about or continue a strike, boycott, or other similar collective action, to obtain property that is not demanded or received for the benefit of the group that the defendant purports to represent; [or]

(k) Destroy, conceal, remove, confiscate, or possess any actual or purported passport, or any other actual or purported government identification document, of another person; or

[~~(k)~~] (l) Do any other act that would not in itself substantially benefit the defendant but [~~which~~] that is calculated to harm substantially some person with respect to the threatened person's health, safety, business, calling, career, financial condition, reputation, or personal relationships;

(2) Intentionally compels or induces another person to engage in conduct from which another has a legal right to abstain or to abstain from conduct in which another has a legal right to engage by threatening by word or conduct to do any of the actions set forth in paragraph (1)(a) through [~~(k);~~] (l); or

(3) Makes or finances any extortionate extension of credit, or collects any extension of credit by extortionate means.

(4) As used in this section:

"Labor" means work of economic or financial value.

SECTION 7. Section 712-1202, Hawaii Revised Statutes, is amended to read as follows:

"§712-1202 Promoting prostitution in the first degree. (1) A person commits the offense of promoting prostitution in the first degree if the person knowingly:

(a) Advances prostitution by compelling a person by [~~criminal coercion~~] force, threat, or intimidation to engage in prostitution, or profits from such coercive conduct by another; or

(b) Advances or profits from prostitution of a person less than [~~sixteen~~] eighteen years old.

(2) "Threat" as used in this section means any threat proscribed by section 707-764(1).

[~~(2)~~] (3) Promoting prostitution in the first degree is a class B felony."

SECTION 8. Section 712-1203, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of promoting prostitution in the second degree if the person knowingly[:

~~(a)~~ ~~Advances~~] advances or profits from prostitution by managing, supervising, controlling, or owning, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving prostitution activity by two or more prostitutes[~~; or~~

~~(b)~~ ~~Advances or profits from prostitution of a person less than eighteen years old~~]."

SECTION 9. Section 842-1, Hawaii Revised Statutes, is amended by amending the definition of "racketeering activity" to read as follows:

""Racketeering activity" means any act or threat involving, but not limited to, murder, kidnapping, sexual exploitation of a minor, gambling, criminal property damage, robbery, bribery, extortion, theft [or], prostitution, or any dealing in narcotic or other dangerous drugs [~~which~~] that is chargeable as a crime under state law and punishable by imprisonment for more than one year."

SECTION 10. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 11. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 12. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2765
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII