SB2579 HD1.DOC

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"ChapteR

SAFE HARBOR FOR SEXUALLY EXPLOITED CHILDREN

§ -1 Findings and purpose. The legislature finds that arresting, prosecuting, and incarcerating victimized children serves to retraumatize them and to increase their feelings of low-self esteem, which only makes the process of recovery more difficult. Appropriate services for sexually exploited children do not exist in the juvenile justice system and both federal and international law recognize that sexually exploited children are the victims of crime and should be treated as such. Therefore, sexually exploited children should not be prosecuted for criminal acts related to prostitution. Instead, the legislature finds that services should be created to meet the needs of these children outside of the justice system. Sexually exploited children deserve the protection of child welfare services, including diversion, crisis intervention, counseling, and emergency housing services.

The purpose of this chapter is to protect a child from further victimization after the child is discovered to be a sexually exploited child by ensuring that a child protective response, not a criminal justice response, is in place. This is accomplished by granting exemption from certain prosecution to sexually exploited children and creating programs and services to meet their specific needs. It should be the priority of the department of human services to establish family reunification where possible, without conflict with the child's health and safety. In determining the need for and capacity for services that may be provided under this chapter, the department of human services shall recognize that sexually exploited children have separate and distinct service needs according to gender, and appropriate services shall be made available while ensuring that an appropriate continuum of services exist.

§ -2 Definitions. As used in this chapter, unless the context requires otherwise:

"Child" means a person who is less than eighteen years of age.

"Department" means the department of human services.

"Safe house" means a residential facility operated by an authorized agency, including a nonprofit agency, with experience in providing services to sexually exploited children and approved by the department to provide shelter for sexually exploited children.

"Sexually exploited child" means any person under the age of eighteen who has been subject to sexual exploitation because the person:

(1) Is a victim of the crime of promoting prostitution in the first degree under section 712-1202;

(2) Is a victim of the crime of sex trafficking of children under title 18 United States Code section 1591; or

(3) Engages in any act under section 712-1200, 712-1206, 712-1207(1)(a), or 712-1207(2)(a), and is granted exemption pursuant to those sections.

§ -3 Victim services program for sexually exploited children established. (a) The department shall develop a victim services program to address the needs of sexually exploited children and minors at risk of becoming sexually exploited.

(b) The victim services program shall:

(1) Provide for the child welfare services needs of sexually exploited children, including but not limited to services for sexually exploited children at the time the child is taken into custody by law enforcement or is identified by the department as a sexually exploited child for the duration of any legal or administrative proceeding in which the child is the complaining witness or the subject child;

(2) Reunite a child with the child's family, if it is in the best interest of the child, or place the child in foster care; and

(3) Provide appropriate services to a child reasonably believed to be a sexually exploited child in order to safeguard the child's welfare.

(1) Coordinate with law enforcement agencies, the county prosecutors' offices, the child and adolescent mental health division of the department of health, child protection workers of the department of human services, and human trafficking service providers to implement the victim services program established under this section;

(2) Provide training and educational materials to its employees regarding sex trafficking of children and sexually exploited children;

(3) Develop a public awareness campaign regarding sex trafficking of children; and

(4) Conduct outreach to youth identified as being at risk for sexual exploitation.

For the purposes of this subsection, "human trafficking service providers" means providers of services who help victims of human trafficking.

(d) The services provided under the victim services program, whether accessed voluntarily, through a court proceeding, or through a referral, which may be made by any person, shall be available to all sexually exploited children.

(e) The department shall submit a report to the legislature, no later than twenty days prior to the convening of each regular session, that:

(1) Details the implementation of the victim services program for sexually exploited children; and

(2) Includes findings, recommendations, additional appropriation requests, and proposed legislation, if any.

§ -4 Temporary care and custody of sexually exploited children. (a) The department shall develop a protocol for the interplay between the exemption provisions for sexually exploited children established by this chapter and other existing child protection statutes.

(b) Sexually exploited children may be taken into custody by a law enforcement agent and may be:

(1) Subject to the protective custody of a law enforcement agent; provided that the child's family is unable to provide for the child's health or safety; or

(2) Returned to the child's parents; provided that, in the judgment of the law enforcement agent, it is safe to do so without jeopardizing the health or safety of the child."

SECTION 2. Section 321-1.3, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) The department of health shall submit an annual report to the legislature no later than twenty days prior to the convening of each regular session providing the following:

(1) An accounting of the receipts of, and expenditures from, the special fund; and

(2) Recommendations on how to improve services for victims of domestic violence, [~~and~~] sexual assault[.], promoting prostitution in the first degree as defined by chapter 712-1202, or sex-trafficking as defined in title 22 United States Code, section 7102, as amended."

SECTION 3. Section 571-11, Hawaii Revised Statutes, is amended to read as follows:

"§571-11 Jurisdiction; children. Except as otherwise provided in this chapter, the court shall have exclusive original jurisdiction in proceedings:

(1) Concerning any person who is alleged to have committed an act prior to achieving eighteen years of age that would constitute a violation or attempted violation of any federal, state, or local law or county ordinance. Regardless of where the violation occurred, jurisdiction may be taken by the court of the circuit where the person resides, is living, or is found, or in which the offense is alleged to have occurred;

(2) Concerning any child living or found within the circuit:

(A) Who is neglected as to or deprived of educational services because of the failure of any person or agency to exercise that degree of care for which it is legally responsible;

(B) Who is beyond the control of the child's parent or other custodian or whose behavior is injurious to the child's own or others' welfare;

(C) Who is neither attending school nor receiving educational services required by law whether through the child's own misbehavior or nonattendance or otherwise; or

(D) Who is in violation of curfew;

(3) To determine the custody of any child or appoint a guardian of any child;

(4) For the adoption of a person under chapter 578;

(5) For the termination of parental rights under sections 571-61 through 571-63;

(6) For judicial consent to the marriage, employment, or enlistment of a child, when consent is required by law;

(7) For the treatment or commitment of a mentally defective or mentally ill child, or a child with an intellectual disability;

(8) Under the Interstate Compact on Juveniles under chapter 582 or the Interstate Compact for Juveniles under chapter 582D;

(9) For the protection of any child under chapter 587A; [~~and~~]

(10) For a change of name as provided in section 574‑5(a)(2)(C)[.]; and

(11) Concerning any person under eighteen years of age who is suspected of or charged with a violation of section 712-1200, 712-1206, or 712-1207(1)(a) or (2)(a), and later granted exemption under section 712-1200(6), 712‑1206(4), or 712-1207(8), respectively. Regardless of where the violation occurred, jurisdiction may be taken by the court of the circuit where the person resides, is living, or is found, or in which the offense is alleged to have occurred."

SECTION 4. 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 [~~two~~] six years after an act of promoting prostitution by coercion 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[.];

(3) Until the plaintiff discovers that an act of promoting prostitution by coercion has occurred and that the defendant caused, was responsible for, or profited from the act of promoting prostitution by coercion; or

(4) If the plaintiff is a victim of a series of acts of promoting prostitution by coercion by the same defendant, until the last act of promoting prostitution by coercion has occurred.

(c) A statute of limitations defense may not be asserted if the defendant induced or attempted to induce the plaintiff to delay filing a claim under this chapter."

SECTION 5. Section 712-1200, Hawaii Revised Statutes, is amended to read as follows

"§712-1200 Prostitution. (1) A person commits the offense of prostitution if the person:

(a) Engages in, or agrees or offers to engage in, sexual conduct with another person for a fee; or

(b) Pays, agrees to pay, or offers to pay a fee to another to engage in sexual conduct.

(2) As used in subsection (1), "sexual conduct" means "sexual penetration," "deviate sexual intercourse," or "sexual contact," as those terms are defined in section 707-700.

(3) Prostitution is a petty misdemeanor.

(4) A person convicted of committing the offense of prostitution shall be sentenced as follows:

(a) For the first offense, when the court has not deferred further proceedings pursuant to chapter 853, a mandatory fine of $500 and the person may be sentenced to a term of imprisonment of not more than thirty days or probation; provided that in the event the convicted person defaults in payment of the $500 fine, and the default was not contumacious, the court may sentence the person to perform services for the community as authorized by section 706-605(1).

(b) For any subsequent offense, a mandatory fine of $500 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.

(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 four 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. When the court has ordered a sentence of probation, the court may impose as a condition of probation that the defendant complete a course of prostitution intervention classes; provided that the court may only impose such condition for one term of probation.

(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.

(6) If it is determined, after a reasonable detention for investigative purposes, that a person suspected of or charged with prostitution was less than eighteen years of age at the time the offense was allegedly committed, that person shall be not be prosecuted under this section, and shall be subject to the safe harbor provisions of chapter . Exemption from prosecution under this section shall not apply to patrons of prostitution or persons who procure or solicit patrons for prostitution."

SECTION 6. Section 712-1206, Hawaii Revised Statutes, is amended to read as follows:

"[[]§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.

(4) If it is determined, after a reasonable detention for investigative purposes, that a person suspected of or charged with a violation under subsection (2) was less than eighteen years of age at the time the offense of loitering for the purpose of engaging in prostitution was allegedly committed, that person shall not be prosecuted under this section, and shall be subject to the safe harbor provisions of chapter . Exemption from prosecution under this section shall not apply to patrons of prostitution or persons who procure or solicit patrons for prostitution."

SECTION 7. Section 712-1207, Hawaii Revised Statutes, is amended to read as follows:

"§712-1207 Street solicitation of prostitution; 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

(b) Pay, agree to pay, or offer to pay a fee 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

(b) Pay, agree to pay, or offer to pay a fee 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) If it is determined, after a reasonable detention for investigative purposes, that a person suspected of or charged with a violation of subsection (1)(a) or (2)(a) was less than eighteen years of age at the time the violation was allegedly committed, that person shall not be prosecuted under this section, and shall be subject to the safe harbor provisions of chapter . Exemption from prosecution under this section shall not apply to patrons of prostitution or persons who procure or solicit patrons for prostitution.

[~~(8)~~] (9) 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)~~] (10) This section shall apply to all counties; provided that if a county enacts an ordinance to regulate street solicitation for prostitution, 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 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 10. This Act shall take effect on July 1, 2050.

THE SENATE	S.B. NO.	2579
TWENTY-SIXTH LEGISLATURE, 2012		S.D. 2
STATE OF HAWAII		H.D. 1