|
HOUSE OF REPRESENTATIVES |
H.B. NO. |
993 |
|
THIRTY-THIRD LEGISLATURE, 2025 |
|
|
|
STATE OF HAWAII |
|
|
|
|
|
|
|
|
||
|
|
||
A BILL FOR AN ACT
RELATING TO OFFENSES AGAINST PUBLIC HEALTH AND MORALS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
The
legislature finds that the Hawaii supreme court decision in State v. Ibarra,
153 Hawai`i 50, 526 P.3d 575 (2023), indicates a need
for the sex trafficking and promoting prostitution criminal offense statutes to
be further clarified.
Accordingly,
the purpose of this Act is to clarify and update the sex trafficking and promoting
prostitution criminal offense statutes by:
(1) Clarifying the definition of "profits from prostitution";
(2) Restructuring provisions that define terms or establish exemptions for part I of chapter 712, Hawaii Revised Statutes, to enhance readability;
(3) Making technical amendments to update statutory
references to part I of chapter 712, Hawaii Revised Statutes.
SECTION 2.
Section 350-1, Hawaii Revised Statutes, is amended by amending the definition
of "child abuse or neglect" to read as follows:
""Child abuse or neglect" means:
(1) The
acts or omissions of any person who, or legal entity [which,] that,
is in any manner or degree related to the child, is residing with the child, or
is otherwise responsible for the child's care, that have resulted in the physical
or psychological health or welfare of the child, who is under the age of eighteen,
to be harmed, or to be subject to any reasonably foreseeable, substantial risk of
being harmed. The acts or omissions are indicated
for the purposes of reports by circumstances that include but are not limited to:
(A) When
the child exhibits evidence of:
(i) Substantial or multiple skin bruising or any other internal bleeding;
(ii) Any injury to skin causing substantial bleeding;
(iii) Malnutrition;
(iv) Failure to thrive;
(v) Burn
or burns;
(vi) Poisoning;
(vii) Fracture of any bone;
(viii) Subdural hematoma;
ix) Soft tissue swelling;
(x) Extreme pain;
(xi) Extreme mental distress;
(xii) Gross degradation; or
(xiii) Death; and
[such] the injury is
not justifiably explained, or when the history given concerning [such] the
condition or death is at variance with the degree or type of [such] the
condition or death, or circumstances indicate that [such] the condition
or death may not be the product of an accidental occurrence;
(B) When
the child has been the victim of sexual contact or conduct, including but not limited
to sexual assault as defined in the Penal Code, molestation, sexual fondling, incest,
or prostitution; obscene or pornographic photographing, filming, or depiction; or
other similar forms of sexual exploitation, including but not limited to acts that
constitute an offense pursuant to section [712-1202(1)(b);] 712-1202(1)(c);
(C) When
there exists injury to the psychological capacity of a child as is evidenced by
an observable and substantial impairment in the child's ability to function;
(D) When
the child is not provided in a timely manner with adequate food, clothing, shelter,
psychological care, physical care, medical care, or supervision;
(E) When
the child is provided with dangerous, harmful, or detrimental drugs as defined by
section 712-1240; provided that this subparagraph shall not apply when such drugs
are provided to the
child pursuant to the direction or prescription of a practitioner, as defined in
section 712-1240; or
(F) When
the child has been the victim of labor trafficking under chapter 707; or
(2) The
acts or omissions of any person that have resulted in sex trafficking or severe
forms of trafficking in persons; provided that no finding by the department pursuant
to this chapter shall be used as conclusive evidence that a person has committed
an offense under part VIII of chapter 707 or section 712-1202."
SECTION 3. Section 588-2, Hawaii Revised Statutes, is amended
by amending the definition of "child sexual abuse" to read as follows:
""Child sexual abuse" means any
of the offenses described under chapter 707, part V, when committed against a person
under the age of eighteen years or that damage or injure a child's physical or psychological
health or welfare, where the child has been the victim of sexual contact or conduct,
including sexual assault; sodomy; molestation; sexual fondling; incest; prostitution;
obscene or pornographic photographing, filming, or depiction; or other similar forms
of sexual exploitation, including but not limited to acts that constitute an offense
pursuant to section [712-1202(1)(b).] 712-1202(1)(c)."
SECTION 4.
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 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)] (2) Prostitution [is] shall be a petty
misdemeanor; provided that if the person who commits the offense under subsection
(1) is a minor, prostitution [is] shall be a violation.
[(4)] (3) 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] the defendant, 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)] (4) 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[;] or sexual penetration[;]
or sadomasochistic abuse by a member of a police department, sheriff, or law
enforcement officer be considered to fall within the course and scope of duties.
[(6)] (5) 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 712-1200.5, Hawaii Revised Statutes, is
amended to read as follows:
"[[]§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)] (2) Except as provided in
subsection [(4),] (3), commercial sexual exploitation [is]
shall be a petty misdemeanor.
[(4)] (3) Commercial sexual exploitation [is] shall
be 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)] (4) 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.
[(6)] (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[;] or sexual penetration[;]
or sadomasochistic abuse by a member of a police department, sheriff, or law
enforcement officer be considered to fall within the course and scope of duties."
SECTION 6.
Section 712-1201, Hawaii Revised Statutes, is amended to read as follows:
"§712-1201 [Advancing prostitution; profiting from prostitution;
definition] Definitions of terms[.] in this part. In [sections 712-1202 and 712-1203: (1) A person
"advances] this part, unless a different meaning is required or specified:
"Advances prostitution" [if]
means that the person knowingly causes or aids [a] another
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[;].
"Minor" means a person who is less
than eighteen years of age.
[(2)
A person "profits] "Profits from prostitution"
[if] means that the person knowingly accepts or receives money,
anything of value, or other property pursuant to an agreement or understanding with
[any person] a third party whereby the person participates or is to
participate in the proceeds of prostitution activity[; and], regardless
of whether the money, thing of value, or other property is accepted or received
in excess of expenditures or as reimbursement or repayment of any debt.
[(3)
The definitions in subsections (1) and (2) 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.]
"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."
SECTION 7.
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) Profits
from prostitution that is the result of another person compelling or inducing a
person by force, threat, fraud, coercion, or intimidation to engage in prostitution;
or
[(b)] (c) Advances prostitution or profits from prostitution
of a minor.
(2) Sex
trafficking [is] shall be a class A felony.
"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)] (1)(c) 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) No person shall be
convicted under this section if the conduct of the person underlying the offense
consists exclusively of the person's own acts of:
(a) Prostitution
as a prostituted person as provided in section 712-1200; or
(b) Commercial sexual
exploitation as provided in section 712-1200.5."
SECTION 8. Section 712-1203, Hawaii Revised Statutes, is
amended to read as follows:
"§712-1203 Promoting prostitution. (1)
A person commits the offense of promoting prostitution if the person knowingly
advances prostitution or profits from prostitution.
(2) Promoting
prostitution [is] shall be a class B felony.
(3)
No person shall be convicted under this section if the conduct of the person
underlying the offense consists exclusively of the person's own acts of:
(a) Prostitution
as a prostituted person as provided in section 712-1200; or
(b) Commercial
sexual exploitation as provided in section 712-1200.5."
SECTION 9.
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] that 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] shall be guilty of a petty misdemeanor."
SECTION 10.
Section 712-1207, Hawaii Revised Statutes, is amended by amending subsection
(8) to read as follows:
"(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. "
SECTION 11. Section 712-1209,
Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows:
"(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 12. Section 712-1209.1,
Hawaii Revised Statutes, is amended to read as follows:
"§712-1209.1 Commercial
Sexual Exploitation of a Minor. (1) A person eighteen years of age or older commits
the offense of commercial sexual exploitation of a minor if the person intentionally,
knowingly, or recklessly:
(a) Offers or agrees to provide
anything of value to a member of a police department, a sheriff, or a law enforcement
officer who represents that person's self as a minor to engage in sexual conduct;
(b) Provides anything of value
to a minor or third person as compensation for having engaged in sexual conduct
with a minor;
(c) Agrees to provide or offers
to provide anything of value to a minor or third person for the purpose of engaging
in sexual conduct with a minor; or
(d) Solicits, offers to engage
in, or requests to engage in sexual conduct with a minor in return for anything
of value.
(2) Commercial sexual exploitation
of a minor [is] shall be a class B felony.
(3) In addition to any other
authorized disposition, a person convicted of committing the offense of commercial
sexual exploitation of a minor shall be sentenced to pay a fine of no less than
$5,000.
(4) 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[;] or sexual
penetration[;] or sadomasochistic abuse by a member of a police department,
sheriff, or law enforcement officer be considered to fall within the course
and scope of duties.
(5) 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 circumstance that the victim was a minor; provided
that the person had a reasonable opportunity to observe the victim.
(6) Consent of a minor to
the sexual conduct does not constitute a defense to any offense in this section.
[(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).]"
SECTION 13. 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),]
712-1200.5(3), 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
14. This Act does not affect rights and duties
that matured, penalties that were incurred, and proceedings that were begun before
its effective date.
SECTION
15. Statutory material to be repealed is
bracketed and stricken. New statutory material
is underscored.
SECTION 16. This Act, upon its approval, shall take effect on July 1, 2025.
|
INTRODUCED BY: |
_____________________________ |
|
|
BY REQUEST |
Report Title:
Penal Code; Offenses Against Public Health and Morals; Sex Trafficking; Promoting Prostitution
Description:
Clarifies that the definition of "profits from prostitution" includes any money or property accepted or received from the proceeds of prostitution activity even if it is accepted or received as the reimbursement or repayment of a debt. Restructures provisions that define terms or establish exemptions for part I of chapter 712, Hawaii Revised Statutes, to enhance readability. Makes technical amendments to update statutory references to part I of chapter 712, Hawaii Revised Statutes.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.