SB3245

SECTION 1. The legislature finds that globally, an estimated twenty-seven million people are in slavery. The estimated total market value of illegal human trafficking is $32,000,000,000. The International Labor Organization has reported that child workers, minorities, and irregular migrants are at considerable risk of more extreme forms of exploitation.

The legislature also finds that individuals in the State are vulnerable to human trafficking and the closely related phenomenon of commercial sexual exploitation. According to a January 2020 report on sex trafficking in Hawaii authored by researchers from Arizona State University and the Hawaii state commission on the status of women, 26.7 per cent, or one in four, of several hundred clients served by Child and Family Service across five islands during a three-month period in 2019 reported being sex trafficked. Two key points reported were that sixty-four per cent of the ninety-seven sex trafficked individuals were of native Hawaiian ethnicity and twenty-three per cent of the sex trafficked individuals identified as male. Other key findings highlighted the severity of the problem and the urgent need to combat human trafficking in Hawaii. For example, more than one-quarter of the sex trafficked individuals reported that their sex trafficker was a family member. The age of victims at their first sex trafficking experience ranged from four to fifty-five years old. Of the sex trafficked individuals who were first trafficked when under the age of eighteen, the average victim age at the first sex trafficking experience was 11.3 years old. The most common reasons identified by victims for their forced or coerced participation in sex trafficking were drugs, money, and shelter, with all three reasons being nearly equal in prevalence.

The legislature recognizes that the adverse impacts of human trafficking are far-reaching and cause harm to individuals and their families, communities, and societies. Trafficked individuals are often denied educational opportunities, which limits their potential to contribute economically as part of the workforce. Further, the illegal activity generated by human trafficking diverts moneys that otherwise may have contributed to the growth of legitimate businesses or supported legally employed workers.

The negative consequences of human trafficking also impact the healthcare sector and contribute to rising healthcare costs. The trauma inflicted on a trafficking victim often affects the victim's friends and family members. The costs of medical treatment and rehabilitation for victims place additional burdens on individuals, medical professionals, insurers, and healthcare systems. Viewed in this light, directing resources toward the abolishment of human trafficking is both a moral obligation and fiscal responsibility.

Accordingly, the purpose of this Act is to:

(1) Require the department of human services to develop, and certain businesses and establishments to post, a notice containing information about the National Human Trafficking Hotline;

(2) Require the department of the attorney general to establish a statewide coordinator and program within the department to address the needs of victims of human trafficking;

(3) Require the department of the attorney general to submit reports to the legislature on the State's efforts to address human trafficking and the commercial sexual exploitation of children;

(4) Require the children's justice program of the judiciary to coordinate the investigation and case management of child trafficking cases, including cases involving the commercial sexual exploitation of children;

(5) Specify that court-ordered restitution for a victim of labor trafficking may include the cost of necessary rehabilitation for the victim, including medical, psychiatric, and psychological care and treatment;

(6) Require a person convicted of sex trafficking to forfeit assets from trafficking activity and require that the assets first be used to pay any restitution owed or damages awarded to the trafficking victim; and

(7) Provide a process for victims of certain offenses involving human trafficking to petition to have their criminal record expunged.

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

"§ - Human trafficking; posting of notice required. (a) Each of the businesses and other establishments specified below, upon the availability of the model notice described in subsection (c), shall post in a conspicuous place, near the public entrance of the business or establishment or in another conspicuous location in clear view of the public and employees where similar notices are customarily posted, a notice that complies with the requirements of this section:

(1) Establishments possessing a liquor license that is described in section 281-31;

(2) Bus stations;

(3) Emergency rooms within general acute care hospitals;

(4) Urgent care centers;

(5) Privately operated job recruitment centers;

(6) Boardinghouses, hotels, lodging or tenement houses, group homes, group residences, group living arrangements, and rooming houses, as defined in section 445-90; and

(7) Businesses or establishments that are licensed to offer massage or bodywork services in return for compensation.

(b) The notice required to be posted pursuant to subsection (a) shall be at least eight and one-half inches by eleven inches in size, written in a sixteen-point font or larger, and shall include the following statements:

(1) "If you or someone you know is being forced to engage in any activity and cannot choose to leave--whether the activity involves commercial sex, housework, farm work, construction, factory, retail, or restaurant work, or another form of forced labor--call the National Human Trafficking Hotline at 1-888-373-7888 or send a text message to 233733 to access their help and services.";

(2) "Victims of slavery and human trafficking are protected under United States and Hawaii law."; and

(3) "The toll-free phone and text lines are available 24 hours a day, 7 days a week, 365 days a year. The hotline can provide help, referral to services, training, and general information. Help is available in more than 200 languages. The hotline is operated by a non-profit, non-governmental organization. Communications with the hotline are anonymous and confidential.".

(c) No later than January 1, 2023, the department of human services shall develop a model notice that complies with the requirements of this section and shall make the model notice available for download on the department's website.

(d) A business or establishment that fails to comply with the requirements of this section shall be subject to a civil penalty of $500 for a first offense and $1,000 for each subsequent offense.

(e) A state or county agency may bring an enforcement action against a business or establishment that the agency is authorized to regulate, and if the following conditions are met:

(1) The agency provided the business or establishment with reasonable notice of noncompliance and specified that the business or establishment is subject to the applicable civil penalty if the violation is not corrected within thirty days from the date that notice was provided; and

(2) The agency verified that the business or establishment failed to correct the violation with the thirty-day period described in paragraph (1)."

SECTION 3. Chapter 28, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART . HUMAN TRAFFICKING STATEWIDE COORDINATOR AND PROGRAM

§28- Definitions. As used in this part:

"Child" means a person under eighteen years of age.

"Commercial sexual exploitation of children" means any sexual activity involving a child for the exchange or promise of anything of value by any person.

"Department" means the department of the attorney general.

"Human trafficking" includes "severe forms of trafficking in persons", as defined in title 22 United States Code section 7102(11), and "sex trafficking", as set forth in section 712‑1202 and as defined in title 22 United States Code section 7102(12).

"Statewide coordinator" means the statewide coordinator on human trafficking established in this part.

§28- Human trafficking statewide coordinator and program. (a) The attorney general shall appoint a statewide coordinator on human trafficking for the proper administration and enforcement of this chapter without regard to chapter 76.

(b) The department shall develop and implement a program to prevent and to assist victims of human trafficking that shall:

(1) Assess the current needs of the State's anti‑trafficking response and develop:

(A) A statewide strategy to prevent human trafficking; and

(B) A plan to provide increased support and assistance to victims of the commercial sexual exploitation of children and victims of human trafficking;

(2) Implement statewide strategies to address offender accountability through law enforcement efforts, prosecutions, and crime prevention efforts;

(3) Promote public awareness of:

(A) Human trafficking and the commercial sexual exploitation of children;

(B) The availability of services for victims of human trafficking; and

(4) Produce and maintain informational materials, including a website, on the prevention of human trafficking and the commercial sexual exploitation of children, and on the availability of public resources for victims and witnesses;

(5) Develop and provide comprehensive training on ways to prevent, identify, and address human trafficking and the commercial sexual exploitation of children; and

(6) Apply for and monitor federal funding for anti‑trafficking efforts.

(c) The department shall submit a report to the legislature no later than twenty days prior to the convening of the regular session of 2023 on the State's efforts to address the commercial sexual exploitation of children; and shall submit a report to the legislature no later than twenty days prior to the convening of the regular session of 2024 on the State's efforts to address human trafficking. Each report shall include:

(1) Plans to assist local and state agencies in identifying and responding to victims;

(2) Best practices used in other states to identify and assist victims;

(3) A comprehensive evaluation of applicable programs and services currently offered by the State;

(4) Strategies for public outreach and education;

(5) An assessment of barriers that inhibit law enforcement agencies, service providers, government agencies, and non-governmental organizations in the State from supporting victims and holding offenders accountable;

(6) A review of criminal statutes in chapter 712 on prostitution and sex trafficking;

(7) Plans for a training program for educators, community members, members of law enforcement agencies, and mandatory reporters of child abuse, including an outline of the training content and an assessment of the need for mandatory training and, if needed, appropriate intervals therefor;

(8) Statewide assessment tools for use by first responders, medical professionals, and service providers to identify victims;

(9) Plans for prevention strategies that mitigate the risk factors for victims and offenders;

(10) Recommendations for enhancing statewide collaboration and coordination through multidisciplinary teams, committees, and task forces;

(11) An analysis of existing data regarding trafficking, which may include the following:

(A) Data specific to the commercial sexual exploitation of children, including:

(i) The number of reports to state and national hotlines alleging the sexual trafficking of a child;

(ii) The total number of children suspected to be victims of sex trafficking, including demographic information and information on whether each child was previously served by the department or by the department of human services;

(iii) The total number of children confirmed to be victims of sex trafficking, including demographic information and information on whether each child was previously served by the department or by the department of human services;

(iv) Data collected by state-contracted providers, including the types and aggregate costs of services provided to children who are suspected or confirmed victims of sex trafficking, the number of children receiving each type of service, and the total number of new children and families served through these providers; and

(v) The number of prosecutions and convictions in the State, delineated by county, for crimes related to human trafficking or the commercial sexual exploitation of children;

(B) Data specific to sex and labor trafficking;

(D) Recommendations for improving data collection and data sharing among service providers, non‑governmental organizations, and government agencies, including law enforcement agencies; and

(12) Any proposed legislation.

(d) The department may submit additional reports to the legislature providing data, status updates, and recommendations, as determined by the department.

(e) Every public official and state and county department shall render all necessary assistance and cooperation within their respective jurisdictional power to share information and to assist the program in carrying out its duties under this part."

SECTION 4. Section 588-1, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The purpose of the program shall be to:

(1) Develop, achieve, and maintain interagency and interprofessional cooperation and coordination in the investigation [of] and case management of [~~intrafamilial and extrafamilial~~] child sex abuse [~~and~~], serious physical child abuse, and child trafficking cases[;], including cases involving the commercial sexual exploitation of children;

(2) Facilitate in an impartial manner the professional gathering of information by public and private agencies and their providers for court proceedings involving child victims and witnesses;

(3) Reduce to the absolute minimum the number of interviews of child sex abuse and child trafficking victims so as to minimize revictimization of the child;

(4) Coordinate the therapeutic and treatment program for child sex abuse and child trafficking victims and their families;

(5) Provide for a multidisciplinary team and case management approach [~~which~~] that is focused first, on the alleged or suspected child sex abuse or child trafficking victim's needs and conditions; second, on the family members who are supportive of the child and whose interests are consistent with the best interests of the child; and third, on law enforcement and prosecutorial needs;

(6) Provide for the training and continuing education of skilled professional interviewers of child sex abuse and child trafficking victims; and

(7) Serve as the focus of information and referral for child sex abuse and child trafficking programs."

SECTION 5. Section 707-785, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) In addition to any other penalty, and notwithstanding a victim's failure to request restitution under section 706‑646(2), the court shall order restitution to be paid to the victim, consisting of an amount that is the greater of:

(a) The total gross income or value to the defendant of the victim's labor or services; [or]

(b) The value of the victim's labor or services, as guaranteed under the minimum wage provisions of chapter 387 or the Fair Labor Standards Act of 1938, Public Law 75-718, title 29 United States Code sections 201 through 219, inclusive, whichever is greater[.]; or

(c) The amount equal to the cost of necessary rehabilitation for the victim, including medical, psychiatric, and psychological care and treatment."

SECTION 6. Section 712-1202, Hawaii Revised Statutes, is amended to read as follows:

"§712-1202 Sex trafficking. (1) A person commits the offense of sex trafficking if the person knowingly:

(a) Advances prostitution by compelling or inducing a person by force, threat, fraud, coercion, or intimidation to engage in prostitution, or profits from such conduct by another; or

(b) Advances prostitution or profits from prostitution of a minor.

(2) Sex trafficking is a class A felony.

(3) As used in this section:

"Fraud" means making material false statements, misstatements, or omissions.

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

"Threat" means any of the actions listed in section 707‑764(1).

(4) The state of mind requirement for the offense under subsection (1)(b) is not applicable to the fact that the victim was a minor. A person is strictly liable with respect to the attendant circumstances that the victim was a minor.

(5) Notwithstanding chapter 712A and any other law to the contrary, a person convicted of the offense of sex trafficking shall forfeit any profits, proceeds, and interests in property that the person has acquired or maintained as a result of committing the trafficking, as determined by the court. The assets forfeited shall first be used to pay any restitution owed to the trafficking victim and subsequently to pay any damages awarded to the trafficking victim in a civil action. Any remaining assets shall be used to reimburse the appropriate state or county agencies that conducted the investigation and prosecution; provided that any assets remaining after reimbursement shall be liquidated and deposited to the general fund."

SECTION 7. Section 712-1209.6, Hawaii Revised Statutes, is amended to read as follows:

"§712-1209.6 Prostitution; motion to vacate conviction[.]; petition to expunge record. (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~~] subsection (1) 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.

(3) Notwithstanding section 831-3.2 and any other law to the contrary, a person who is a victim of human trafficking may file a petition for expungement of the person's criminal record; provided that the record resulted from the person's arrest or prosecution for an offense committed or reported to have been committed when the person was a victim of human trafficking; provided further that the offense was committed or reported to have been committed as part of the human trafficking scheme in which the person was a victim or was undertaken at the direction of an operator of the scheme.

(4) The court shall hold a hearing on a petition filed under subsection (3) to review the person's record during 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 reasonable evidence that the person was a victim of human trafficking, the court shall issue an order requiring that the record be expunged."

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	3245
THIRTY-FIRST LEGISLATURE, 2022
STATE OF HAWAII