HB896

SECTION 1. Chapter 712, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"§712- Sex trafficking; capital punishment. (1) This section shall apply only to a defendant who has been convicted of sex trafficking under section 712-1202.

(2) Upon the defendant's conviction, the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or to life imprisonment without possibility of parole; provided that a defendant shall not be sentenced to death under this section if the defendant:

(a) Is under eighteen years of age; or

(b) As a result of a physical or mental disease, disorder, or defect lacks the capacity to understand the proceedings against the person or to assist in the person's own defense, so long as the incapacity endures.

(3) The proceeding shall be conducted by the trial court judge before the trial jury as soon after the defendant's conviction as is practicable. If a jury trial has been waived or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury empaneled for that purpose, unless waived by the defendant. In the proceeding, evidence shall be presented regarding any aggravating circumstances listed in subsection (5) and mitigating circumstances listed in subsection (6), and evidence may be presented as to any other matter that the court deems relevant to the sentence. Any evidence that the court deems to have probative value may be received; provided that this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the Constitution of the State of Hawaii. The defendant and the State shall be permitted to present arguments for or against the sentence of death.

(4) After hearing all evidence, the jury shall deliberate and recommend to the court whether the defendant should be sentenced to death or to life imprisonment without possibility of parole. A recommendation of death shall require a unanimous vote of the jury and shall be based on a written finding that there are insufficient mitigating circumstances to overcome the circumstances of the act of sex trafficking and a listing of any aggravating circumstances. The jury shall not recommend a death sentence unless the jury finds that:

(a) There exists at least one aggravating circumstance under subsection (5) that justifies the death penalty; and

(b) There are no mitigating circumstances under subsection (6), or there are insufficient mitigating circumstances, considered as a whole, to outweigh each aggravating circumstance, considered separately.

(5) In making its recommendation, the jury shall consider the following as aggravating circumstances, if they apply:

(a) The defendant knowingly created a substantial risk of death to the victim;

(b) The offense was committed while the defendant was engaged in the commission of, or an attempt to commit, any other felony; or

(6) In making its recommendation, the jury shall consider the following mitigating circumstances, if they apply:

(a) The defendant has no significant history of prior criminal activity;

(b) The defendant acted against the defendant's will, under extreme duress, or under the substantial domination of another person, a finding of which shall eliminate the possible imposition of the death penalty;

(c) At the time of the act of sex trafficking, the capacity of the defendant to appreciate the wrongfulness of the defendant's conduct, or to conform the defendant's conduct to the requirements of law, was substantially impaired by something other than the defendant's voluntary and knowing ingestion of intoxicating substances;

(d) The age of the defendant at the time of the offense; and

(e) The defendant was an accomplice in the offense committed by another person, and the defendant's participation was relatively minor, a finding of which shall eliminate the possible imposition of the death penalty.

(7) The court may enter a sentence of death only upon the recommendation of the jury but shall have full discretion to decline to issue that sentence. The court shall set forth in writing its findings upon which the sentence of death is based, including the finding required of the jury pursuant to subsection (4). If the court does not make the findings required to impose the death sentence, the court shall impose a sentence of life imprisonment without possibility of parole.

(8) The judgment of conviction and sentence of death shall be subject to automatic review by the supreme court within sixty days after certification by the sentencing court of the entire record unless time is extended by the supreme court for an additional period, not to exceed thirty days, for good cause shown. The review by the supreme court shall have priority over all other cases before the supreme court and shall be heard in accordance with rules adopted by the supreme court. The supreme court shall determine whether:

(a) The sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor;

(b) The evidence supports the finding of a statutory aggravating circumstance; and

If the sentence is affirmed, the supreme court's findings shall include a reference to any other cases of a similar nature that the court considered in affirming the sentence.

(9) A person sentenced to death under this section shall be executed by the administration of lethal injection at a place and time to be determined by the sentencing court; provided that the court may delegate that decision to the director of corrections and rehabilitation; provided further that if the death penalty is imposed on a pregnant person, the execution shall be stayed until after that person has given birth.

(10) If the death penalty as provided for in this section is held to be unconstitutional by the supreme court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death shall cause that person to be brought before the court, and the court shall sentence that person to life imprisonment without possibility of parole.

(11) As part of the sentence imposed under this section, the court shall order the director of corrections and rehabilitation and the Hawaii paroling authority to prepare an application for the governor to commute a sentence of death to life imprisonment without possibility of parole.

(12) Any deoxyribonucleic acid samples or evidence collected from:

(a) The defendant pursuant to a court order; or

(b) The victim, the scene of the offense, or from any other person or place relevant to any of the offenses in question,

shall be further preserved for evidentiary purposes by the appropriate law enforcement agency in order to allow the defendant the opportunity to introduce the deoxyribonucleic acid evidence at any hearing for which the purpose, in whole or in part, is to overturn the defendant's conviction. The deoxyribonucleic acid evidence shall be preserved until either the defendant's conviction has been overturned or the defendant has been executed pursuant to this section."

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, 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 injury is not justifiably explained, or when the history given concerning such condition or death is at variance with the degree or type of such condition or death, or circumstances indicate that such 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) 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 587A-4, Hawaii Revised Statutes, is amended by amending the definition of "harm" to read as follows:

""Harm" means damage or injury to a child's physical or psychological health or welfare, where:

(1) The child exhibits evidence of injury, including, but not limited to:

(A) Substantial or multiple skin bruising;

(B) Substantial external or internal bleeding;

(D) Malnutrition;

(E) Failure to thrive;

(F) Soft tissue swelling;

(G) Extreme pain;

(H) Extreme mental distress;

(I) Gross degradation;

(J) Poisoning;

(K) Fracture of any bone;

(L) Subdural hematoma; or

(M) Death;

and the injury is not justifiably explained, or the history given concerning the condition or death is not consistent with the degree or type of the condition or death, or there is evidence that the condition or death may not be the result of an accident;

(2) 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);

(3) The child's psychological well-being has been injured as evidenced by a substantial impairment in the child's ability to function;

(4) The child is not provided in a timely manner with adequate food; clothing; shelter; supervision; or psychological, physical, or medical care;

(5) The child is provided with dangerous, harmful, or detrimental drugs as defined in section 712-1240, except when a child's family administers drugs to the child as directed or prescribed by a practitioner as defined in section 712-1240; or

(6) The child has been the victim of labor trafficking under chapter 707."

SECTION 4. 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) Except as provided in subsection (4), commercial sexual exploitation is a petty misdemeanor.~~

~~(4)~~] (3) Commercial sexual exploitation is a class [C] A 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) 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)~~] (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; sexual penetration; or sadomasochistic abuse be considered to fall within the course and scope of duties."

SECTION 5. 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, including a minor, by force, threat, fraud, coercion, or intimidation to engage in prostitution, or profits from [such] the conduct by another[~~; or~~

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

(2) Sex trafficking is a class A felony[.] and may be punished pursuant to section 712- .

(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.]"

SECTION 6. 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, 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;

(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 7. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

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 upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	896
THIRTY-THIRD LEGISLATURE, 2025
STATE OF HAWAII