HB2235.DOC

HOUSE OF REPRESENTATIVES	H.B. NO.	2235
TWENTY-SIXTH LEGISLATURE, 2012
STATE OF HAWAII

A BILL FOR AN ACT

relating to prostitution.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The purpose of this Act is to authorize a person convicted of committing the offense of prostitution to file a motion to vacate the judgment under certain circumstances and to establish procedures for the motion to vacate.

SECTION 2. Chapter 712, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§712- Prostitution; motion to vacate judgment. (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, street solicitation of prostitution in designated areas under section 712-1207, or convicted of a lesser offense when originally charged with a violation of section 712-1200, 712-1206, or 712-1207, may file a motion to vacate the conviction if the defendant's participation in the offense was the result of the person having been a victim of:

(a) Promoting prostitution in the first degree under section 712-1202 or promoting prostitution in the second degree under section 712-1203;

(b) A severe form of trafficking in persons as defined in title 22 United States Code section 7102(13); or

(2) A motion filed under this section shall:

(a) Be in writing;

(b) Be made within a reasonable period of time after the person ceases to be a victim as described in subsection (1), subject to reasonable concerns for the safety of the defendant, family members of the defendant, or other victims of the trafficking that may be jeopardized by the bringing of a motion, or for other reasons consistent with the purpose of this section; and

(c) Describe the evidence and provide copies of any official documents showing that the defendant is entitled to relief under this section.

(3) The court shall hold a hearing on a motion filed under this section if the motion satisfies the requirements of subsection (2); provided that the court may dismiss a motion without a hearing if the court finds that the motion fails to assert grounds on which relief may be granted.

(4) Official documentation of the defendant's status as a victim of trafficking or a victim of a severe form of trafficking from a federal, state, or local government agency or a sworn statement from a trained professional staff member of a victim services organization, an attorney, a member of the clergy, or a medical or other health professional from whom the defendant has sought services to address the effects of having been trafficked shall create a presumption that the person's participation in the offense of prostitution was a result of having been a victim of trafficking or a victim of a severe form of trafficking, but shall not be required for granting a petition under this subsection.

(5) If the court grants a motion filed under this section, the court shall vacate the conviction and dismiss the accusatory pleading, and may take additional action as is appropriate in the circumstances or as justice requires.

(6) A person making a motion to vacate pursuant to this section has the burden of proof by a preponderance of the evidence.

(7) This section shall not apply to a motion to vacate a conviction under this chapter for:

(a) Promoting prostitution; or

(b) A person who offers a fee to engage in sexual conduct with another person.

(8) For the purposes of this section:

"Official documentation" includes a police report, court record, or affidavit generated from a federal, state, or local government agency; a victim services organization that has served the person as a victim of trafficking; an attorney; a member of the clergy; or a medical or health care professional.

"Victim of trafficking" and "victim of a severe form of trafficking" shall have the same meaning as in title 22 United States Code section 7102."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________