| 1 | 1 | | THE SENATE S.B. NO. 1041 THIRTY-FIRST LEGISLATURE, 2021 STATE OF HAWAII A BILL FOR AN ACT RELATING TO CRIME. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: |
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| 3 | 3 | | THE SENATE S.B. NO. 1041 |
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| 4 | 4 | | THIRTY-FIRST LEGISLATURE, 2021 |
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| 5 | 5 | | STATE OF HAWAII |
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| 7 | 7 | | THE SENATE |
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| 9 | 9 | | S.B. NO. |
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| 11 | 11 | | 1041 |
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| 13 | 13 | | THIRTY-FIRST LEGISLATURE, 2021 |
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| 17 | 17 | | STATE OF HAWAII |
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| 31 | 31 | | A BILL FOR AN ACT |
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| 37 | 37 | | RELATING TO CRIME. |
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| 43 | 43 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: |
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| 47 | 47 | | SECTION 1. Sex trafficking is an ever-evolving criminal enterprise in which traffickers and exploiters find various means to sexually exploit the most vulnerable in our community. As traffickers change tactics to avoid accountability, our criminal justice system and understanding of sex trafficking must continue to evolve as well. Protecting victims from sexual exploitation and holding offenders accountable is difficult given the disparity in power between the victims and perpetrators. Therefore, amending Hawaii's sex trafficking laws to better reflect the current reality and challenges will improve outcomes for trafficking victims and survivors. Legal terminology is vital to our understanding of sex trafficking in the criminal justice system and in our general community. Creating a separate crime for individuals who purchase people for sex, changing the name of a crime from "solicitation of a minor for prostitution" to "commercial sexual exploitation of a minor", and eliminating the pronoun "prostitute" will further this objective. Given the seriousness of the offense, the level of the offense for perpetrators who purchase children for sex should be increased to a class B felony. Additionally, due to the fear, trauma, and psychological tactics utilized by traffickers, victims are reluctant to come forward and seek justice until they feel safe and free from their exploiters. Therefore, eliminating the statute of limitation for sex trafficking is necessary to hold these offenders accountable. Perpetrators have escaped criminal culpability by exploiting gaps in Hawaii's laws. Adding the rendering of "anything of value" as a means of compensation, in addition to a "fee", will protect those victims who are being sexually exploited in exchange for drugs, housing, and other non-monetary compensation, while also making our law consistent with the federal definition of human trafficking. Additionally, amending the law to account for situations in which a trafficker or third-party is negotiating or profiting from the exploitation of a minor is necessary to hold the buyer accountable. SECTION 2. Chapter 712, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows: "§712- 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) Commercial sexual exploitation is 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) 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 not less than $500 but not more than $1,000 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 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 not less than $500 but not more than $1,000 and a term of imprisonment of thirty days or probation, without possibility of suspension of sentence. (c) For the purpose of this subsection, 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 exploitation intervention classes; provided that the court may only impose the condition for one term of probation. (6) 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 during undercover operations. Under no circumstances shall sexual penetration or sadomasochistic abuse be considered to fall within the course and scope of duties." SECTION 3. Section 701108, Hawaii Revised Statutes, is amended by amending subsection (l) to read as follows: "(1) A prosecution for murder, murder in the first and second degrees, attempted murder, and attempted murder in the first and second degrees, criminal conspiracy to commit murder in any degree, criminal solicitation to commit murder in any degree, sexual assault in the first and second degrees, sex trafficking, and continuous sexual assault of a minor under the age of fourteen years may be commenced at any time." SECTION 4. Section 712-1200, Hawaii Revised Statutes, is amended as follows: (1) By amending subsection (1) to read as follows: "(1) A person commits the offense of prostitution if the person[: (a) Engages] engages in, or agrees or offers to engage in, sexual conduct with another person in return for a fee[; or (b) Pays, agrees to pay, or offers to pay a fee to another to engage in sexual conduct.] or anything of value." (2) By amending subsections (3), (4), and (5) to read as follows: "(3) Prostitution is a petty misdemeanor; provided that[: (a) If] if the person who commits the offense under subsection (1)[(a)] is a minor, prostitution is a violation[; and (b) If the person who commits the offense under subsection (1)(b) does so in reckless disregard of the fact that the other person is a victim of sex trafficking, prostitution is a class C felony]. (4) 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 not less than $500 but not more than $1,000 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 fine, and the default was not contumacious, the court may [sentence the person to perform services for the community] 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 not less than $500 but not 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. (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 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. [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 the 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[,] during undercover operations. Under no circumstances shall [unless engaged in] sexual penetration or sadomasochistic abuse[.] be considered to fall within the course and scope of duties." SECTION 5. Section 712-1201, Hawaii Revised Statutes, is amended to read as follows: "§712-1201 Advancing prostitution; profiting from prostitution; definition of terms. In sections 712-1202 and 712-1203: (1) A person "advances prostitution" if[, acting other than as a prostitute or a patron of a prostitute,] the person knowingly causes or aids a 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. (2) A person "profits from prostitution" if [, acting other than as a prostitute receiving compensation for personally-rendered prostitution services,] the person accepts or receives money, anything of value, or other property pursuant to an agreement or understanding with any person whereby the person participates or is to participate in the proceeds of prostitution activity. (3) The definitions in subsections (1) and (2) do not include those engaged in conduct outlined in section 712-1200 as the prostituted person, or in conduct outlined in section 712-__ as the person engaged in commercial sexual exploitation." 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 or profits from 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 or profits from prostitution of a minor [; provided that with respect to the victim's age, the prosecution shall be required to prove only that the person committing the offense acted negligently]. (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." SECTION 7. Section 712-1207, Hawaii Revised Statutes, is amended to read as follows: "§712-1207 [Street solicitation of prostitution; designated areas.] Street prostitution and commercial sexual exploitation; 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 anything of value; or (b) [Pay, agree to pay, or offer to pay] Provide, agree to provide, or offer to provide a fee or anything of value 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 anything of value; or (b) [Pay, agree to pay, or offer to pay] Provide, agree to provide, or offer to provide a fee or anything of value 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) 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) This section shall apply to all counties; provided that if a county enacts an ordinance to regulate street [solicitation for prostitution,] prostitution and commercial sexual exploitation, 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. Section 712-1209, Hawaii Revised Statutes, is amended to read as follows: "[[]§712-1209[] Solicitation of prostitution near schools or public parks.] Commercial sexual exploitation near schools or public parks. (1) A person commits the offense of [solicitation of prostitution] commercial sexual exploitation near schools or public parks if, within seven hundred fifty feet of a school or public park, the person [offers or agrees to pay] provides, agrees to provide, or offers to provide a fee or anything of value to another person to engage in sexual conduct. (2) [Solicitation of prostitution] Commercial sexual exploitation near schools or public parks is a misdemeanor. (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 9. Section 712-1209.1, Hawaii Revised Statutes, is amended to read as follows: "§712-1209.1 [Solicitation of a minor for prostitution.] Commercial sexual exploitation of a minor. (1) A person eighteen years of age or older commits the offense of [solicitation of a minor for prostitution] commercial sexual exploitation of a minor if the person intentionally, knowingly, or recklessly [offers or agrees to pay a fee to a minor or 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.]: (a) Provides anything of value to a minor or third person as compensation for having engaged in sexual conduct with a minor; (b) 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 (c) Solicits, offers, or requests to engage in sexual conduct with a minor in return for anything of value. (2) [Solicitation of a minor for prostitution] Commercial sexual exploitation of a minor is a class [C] B felony. (3) [A]In addition to any other authorized disposition, a person convicted of committing the offense of [solicitation of a minor for prostitution] commercial sexual exploitation of a minor shall be [imposed] sentenced to pay a fine of not less than $5,000[; provided that $5,000 of the imposed fine shall be credited to the general fund]. (4) This section shall not apply to any member of a police department, a sheriff, or a law enforcement officer [who offers or agrees to pay a fee to a minor] while acting in the course and scope of duties. (5) The state of mind requirement for [this] the offense under subsection (1)(a) is not applicable to the fact that the [person solicited] victim was a minor. A person is strictly liable with respect to the attendant circumstance that the [person solicited] victim was a minor. (6) Consent of a minor to the sexual conduct does not constitute a defense to any offense in this section. [(6)](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 10. Section 712-1209.5, Hawaii Revised Statutes, is amended to read as follows: "[[]§712-1209.5[] Habitual solicitation of prostitution.] Habitual commercial sexual exploitation. (1) A person commits the offense of habitual [solicitation of prostitution] commercial sexual exploitation if the person is a habitual [prostitution] commercial sexual exploitation offender and [pays, agrees to pay, or offers to pay] provides, agrees to provide, or offers to provide a fee or anything of value to another person to engage in sexual conduct. (2) For the purposes of this section, a person has the status of a "habitual [prostitution] commercial sexual exploitation offender" if the person, at the time of the conduct for which the person is charged, had two or more convictions within ten years of the instant offense for: (a) [Prostitution,] Commercial sexual exploitation, in violation of section [712-1200(1)(b);] 712-___; (b) Street [solicitation of prostitution] commercial sexual exploitation, in violation of section 712-1207(1)(b) or (2)(b); (c) Habitual [solicitation of prostitution,] commercial sexual exploitation, in violation of this section; (d) An offense of this jurisdiction or any other jurisdiction that is comparable to one of the offenses in paragraph (a), (b), or (c); or (e) Any combination of the offenses in paragraph (a), (b), (c), or (d). A conviction for purposes of this section is a judgment on the verdict or a finding of guilt, or a plea of guilty or nolo contendere. The convictions must have occurred on separate dates and be for separate incidents on separate dates. At the time of the instant offense, the conviction must not have been expunged by pardon, reversed, or set aside. (3) Habitual [solicitation of prostitution] commercial sexual exploitation is a class C felony." SECTION 11. Section 712-1209.6, Hawaii Revised Statutes, is amended to read as follows: "§712-1209.6 Prostitution; motion to vacate conviction. (1) A person convicted of committing the offense of prostitution under section 712-1200[(1)(a)], loitering for the purpose of engaging in or advancing prostitution under section 712-1206(2), street [solicitation of] prostitution in designated areas under section 712-1207(1)(a) or 712-1207(2)(a), or convicted of a lesser offense when originally charged with a violation of section 712-1200[(1)(a)], 712-1206(2), or 712-1207(1)(a) or 712-1207(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 to review the defendant's record over the three years after the date of the original conviction under section 712-1200[(1)(a)], 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 penal code within this three year period, the court shall vacate the conviction." SECTION 12. Section 712A-4, Hawaii Revised Statutes, is amended to read as follows: "§712A-4 Covered offenses. Offenses for which property is subject to forfeiture under this chapter are: (a) All offenses that specifically authorize forfeiture; (b) Murder, kidnapping, labor trafficking, unlicensed sale of liquor, unlicensed manufacture of liquor, gambling, criminal property damage, robbery, bribery, extortion, theft, unauthorized entry into motor vehicle, burglary, money laundering, trademark counterfeiting, insurance fraud, promoting a dangerous, harmful, or detrimental drug, commercial promotion of marijuana, methamphetamine trafficking, manufacturing of a controlled substance with a child present, promoting child abuse, promoting prostitution, sex trafficking, [solicitation of a minor for prostitution,] commercial sexual exploitation of a minor, habitual [solicitation of prostitution,] commercial sexual exploitation, or electronic enticement of a child that is chargeable as a felony offense under state law; (c) The manufacture, sale, or distribution of a controlled substance in violation of chapter 329, promoting detrimental drugs or intoxicating compounds, promoting pornography, promoting pornography for minors, or [solicitation of prostitution] commercial sexual exploitation near schools or public parks, which is chargeable as a felony or misdemeanor offense, but not as a petty misdemeanor, under state law; and (d) The attempt, conspiracy, solicitation, coercion, or intimidation of another to commit any offense for which property is subject to forfeiture." SECTION 13. Section 806-83, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows: "(a) Criminal charges may be instituted by written information for a felony when the charge is a class C felony, except under: (1) Section 159-28 (bribery related to the Hawaii Meat Inspection Act); (2) Section 161-28 (bribery related to the Hawaii Poultry Inspection Act); (3) Section 707-712.5 (assault against a law enforcement officer in the first degree); (4) Section 707-716 (terroristic threatening in the first degree); (5) Section 707-732 (sexual assault in the third degree); (6) Section 707-741 (incest); (7) Section 707-752 (promoting child abuse in the third degree); (8) Section 708-880 (commercial bribery); (9) Section 709-904.5 (compensation by an adult of juveniles for crimes); (10) Section 710-1026.9 (resisting an order to stop a motor vehicle in the first degree); (11) Section 710-1070 (bribery of or by a witness); (12) Section 710-1071 (intimidating a witness); (13) Section 710-1072.2 (retaliating against a witness); (14) Section 710-1073 (bribery of or by a juror); (15) Section 710-1075 (jury tampering); (16) Section 710-1075.5 (retaliating against a juror); (17) Section 711-1106.4 (aggravated harassment by stalking); (18) Section 711-1110.9 (violation of privacy in the first degree); (19) Section 712-1208 (promoting travel for prostitution); [(20) Section 712-1209.1 (solicitation of a minor for prostitution); (21)] (20) Section 712-1209.5 (habitual [solicitation of prostitution);] commercial sexual exploitation); [(22)] (21) Section 712-1215 (promoting pornography for minors); [(23)] (22) Section 712-1218 (failure to maintain age verification records of sexual performers); [(24)] (23) Section 712-1218.5 (failure to maintain age verification records of sexually exploited individuals); and [(25)] (24) Section 712-1219 (failure to affix information disclosing location of age verification records of sexual performers)." SECTION 14. 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-___(4), 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) [Solicitation of a minor for prostitution] 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 15. Section 853-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows: "(a) This chapter shall not apply when: (1) The offense charged involves the intentional, knowing, reckless, or negligent killing of another person; (2) The offense charged is: (A) A felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person; or (B) A misdemeanor or petty misdemeanor that carries a mandatory minimum sentence and that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person; provided that the prohibition in this paragraph shall not apply to offenses described in section 709-906(18); (3) The offense charged involves a conspiracy or solicitation to intentionally, knowingly, or recklessly kill another person or to cause serious bodily injury to another person; (4) The offense charged is a class A felony; (5) The offense charged is nonprobationable; (6) The defendant has been convicted of any offense defined as a felony by the Hawaii Penal Code or has been convicted for any conduct that if perpetrated in this State would be punishable as a felony; (7) The defendant is found to be a law violator or delinquent child for the commission of any offense defined as a felony by the Hawaii Penal Code or for any conduct that if perpetrated in this State would constitute a felony; (8) The defendant has a prior conviction for a felony committed in any state, federal, or foreign jurisdiction; (9) A firearm was used in the commission of the offense charged; (10) The defendant is charged with the distribution of a dangerous, harmful, or detrimental drug to a minor; (11) The defendant has been charged with a felony offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior offense, regardless of whether the period of deferral has already expired; (12) The defendant has been charged with a misdemeanor offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior felony, misdemeanor, or petty misdemeanor for which the period of deferral has not yet expired; (13) The offense charged is: (A) Escape in the first degree; (B) Escape in the second degree; (C) Promoting prison contraband in the first degree; (D) Promoting prison contraband in the second degree; (E) Bail jumping in the first degree; (F) Bail jumping in the second degree; (G) Bribery; (H) Bribery of or by a witness; (I) Intimidating a witness; (J) Bribery of or by a juror; (K) Intimidating a juror; (L) Jury tampering; (M) Promoting prostitution; (N) Abuse of family or household member except as provided in paragraph (2) and section 709-906(18); (O) Sexual assault in the second degree; (P) Sexual assault in the third degree; (Q) A violation of an order issued pursuant to chapter 586; (R) Promoting child abuse in the second degree; (S) Promoting child abuse in the third degree; (T) Electronic enticement of a child in the first degree; (U) Electronic enticement of a child in the second degree; (V) [Prostitution] Commercial sexual exploitation pursuant to section [712-1200(1)(b)]712-____; (W) Street [solicitation of] prostitution and commercial sexual exploitation under section 712-1207(1)(b) or (2)(b); (X) [Solicitation of prostitution] Commercial sexual exploitation near schools or public parks under section 712-1209; (Y) Habitual [solicitation of prostitution] commercial sexual exploitation under section 712-1209.5; or (Z) [Solicitation of a minor for prostitution] Commercial sexual exploitation of a minor under section 712-1209.1; (14) The defendant has been charged with: (A) Knowingly or intentionally falsifying any report required under chapter 11, part XIII with the intent to circumvent the law or deceive the campaign spending commission; or (B) Violating section 11-352 or 11-353; or (15) The defendant holds a commercial driver's license and has been charged with violating a traffic control law, other than a parking law, in connection with the operation of any type of motor vehicle." SECTION 16. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before the effective date of this Act. SECTION 17. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 18. This Act shall take effect upon its approval. INTRODUCED BY: _____________________________ BY REQUEST |
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| 49 | 49 | | SECTION 1. Sex trafficking is an ever-evolving criminal enterprise in which traffickers and exploiters find various means to sexually exploit the most vulnerable in our community. As traffickers change tactics to avoid accountability, our criminal justice system and understanding of sex trafficking must continue to evolve as well. |
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| 51 | 51 | | Protecting victims from sexual exploitation and holding offenders accountable is difficult given the disparity in power between the victims and perpetrators. Therefore, amending Hawaii's sex trafficking laws to better reflect the current reality and challenges will improve outcomes for trafficking victims and survivors. |
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| 52 | 52 | | |
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| 53 | 53 | | Legal terminology is vital to our understanding of sex trafficking in the criminal justice system and in our general community. Creating a separate crime for individuals who purchase people for sex, changing the name of a crime from "solicitation of a minor for prostitution" to "commercial sexual exploitation of a minor", and eliminating the pronoun "prostitute" will further this objective. |
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| 54 | 54 | | |
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| 55 | 55 | | Given the seriousness of the offense, the level of the offense for perpetrators who purchase children for sex should be increased to a class B felony. Additionally, due to the fear, trauma, and psychological tactics utilized by traffickers, victims are reluctant to come forward and seek justice until they feel safe and free from their exploiters. Therefore, eliminating the statute of limitation for sex trafficking is necessary to hold these offenders accountable. |
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| 56 | 56 | | |
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| 57 | 57 | | Perpetrators have escaped criminal culpability by exploiting gaps in Hawaii's laws. Adding the rendering of "anything of value" as a means of compensation, in addition to a "fee", will protect those victims who are being sexually exploited in exchange for drugs, housing, and other non-monetary compensation, while also making our law consistent with the federal definition of human trafficking. Additionally, amending the law to account for situations in which a trafficker or third-party is negotiating or profiting from the exploitation of a minor is necessary to hold the buyer accountable. |
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| 58 | 58 | | |
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| 59 | 59 | | SECTION 2. Chapter 712, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows: |
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| 60 | 60 | | |
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| 61 | 61 | | "§712- 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. |
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| 62 | 62 | | |
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| 63 | 63 | | (2) As used in this section: |
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| 64 | 64 | | |
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| 65 | 65 | | "Sexual conduct" has the same meaning as in section 712-1200(2). |
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| 66 | 66 | | |
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| 67 | 67 | | (3) Except as provided in subsection (4), commercial sexual exploitation is a petty misdemeanor. |
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| 68 | 68 | | |
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| 69 | 69 | | (4) Commercial sexual exploitation is 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. |
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| 70 | 70 | | |
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| 71 | 71 | | (5) A person convicted of committing the offense of commercial sexual exploitation as a petty misdemeanor shall be sentenced as follows: |
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| 72 | 72 | | |
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| 73 | 73 | | (a) For the first offense, a fine of not less than $500 but not more than $1,000 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 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). |
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| 74 | 74 | | |
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| 75 | 75 | | (b) For any subsequent offense, a fine of not less than $500 but not more than $1,000 and a term of imprisonment of thirty days or probation, without possibility of suspension of sentence. |
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| 76 | 76 | | |
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| 77 | 77 | | (c) For the purpose of this subsection, 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 exploitation intervention classes; provided that the court may only impose the condition for one term of probation. |
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| 78 | 78 | | |
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| 79 | 79 | | (6) 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 during undercover operations. Under no circumstances shall sexual penetration or sadomasochistic abuse be considered to fall within the course and scope of duties." |
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| 80 | 80 | | |
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| 81 | 81 | | SECTION 3. Section 701108, Hawaii Revised Statutes, is amended by amending subsection (l) to read as follows: |
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| 82 | 82 | | |
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| 83 | 83 | | "(1) A prosecution for murder, murder in the first and second degrees, attempted murder, and attempted murder in the first and second degrees, criminal conspiracy to commit murder in any degree, criminal solicitation to commit murder in any degree, sexual assault in the first and second degrees, sex trafficking, and continuous sexual assault of a minor under the age of fourteen years may be commenced at any time." |
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| 84 | 84 | | |
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| 85 | 85 | | SECTION 4. Section 712-1200, Hawaii Revised Statutes, is amended as follows: |
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| 86 | 86 | | |
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| 87 | 87 | | (1) By amending subsection (1) to read as follows: |
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| 88 | 88 | | |
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| 89 | 89 | | "(1) A person commits the offense of prostitution if the person[: |
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| 90 | 90 | | |
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| 91 | 91 | | (a) Engages] engages in, or agrees or offers to engage in, sexual conduct with another person in return for a fee[; or |
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| 92 | 92 | | |
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| 93 | 93 | | (b) Pays, agrees to pay, or offers to pay a fee to another to engage in sexual conduct.] or anything of value." |
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| 94 | 94 | | |
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| 95 | 95 | | (2) By amending subsections (3), (4), and (5) to read as follows: |
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| 96 | 96 | | |
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| 97 | 97 | | "(3) Prostitution is a petty misdemeanor; provided that[: |
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| 98 | 98 | | |
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| 99 | 99 | | (a) If] if the person who commits the offense under subsection (1)[(a)] is a minor, prostitution is a violation[; and |
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| 100 | 100 | | |
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| 101 | 101 | | (b) If the person who commits the offense under subsection (1)(b) does so in reckless disregard of the fact that the other person is a victim of sex trafficking, prostitution is a class C felony]. |
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| 102 | 102 | | |
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| 103 | 103 | | (4) A person convicted of committing the offense of prostitution as a petty misdemeanor shall be sentenced as follows: |
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| 104 | 104 | | |
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| 105 | 105 | | (a) For the first offense, when the court has not deferred further proceedings pursuant to chapter 853, a fine of not less than $500 but not more than $1,000 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 fine, and the default was not contumacious, the court may [sentence the person to perform services for the community] make an order converting the unpaid portion of the fine to community service as authorized by section 706-605(1). |
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| 106 | 106 | | |
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| 107 | 107 | | (b) For any subsequent offense, a fine of not less than $500 but not 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. |
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| 108 | 108 | | |
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| 109 | 109 | | (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 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. [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 the condition for one term of probation.] |
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| 110 | 110 | | |
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| 111 | 111 | | (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[,] during undercover operations. Under no circumstances shall [unless engaged in] sexual penetration or sadomasochistic abuse[.] be considered to fall within the course and scope of duties." |
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| 112 | 112 | | |
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| 113 | 113 | | SECTION 5. Section 712-1201, Hawaii Revised Statutes, is amended to read as follows: |
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| 114 | 114 | | |
|---|
| 115 | 115 | | "§712-1201 Advancing prostitution; profiting from prostitution; definition of terms. In sections 712-1202 and 712-1203: |
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| 116 | 116 | | |
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| 117 | 117 | | (1) A person "advances prostitution" if[, acting other than as a prostitute or a patron of a prostitute,] the person knowingly causes or aids a 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. |
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| 118 | 118 | | |
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| 119 | 119 | | (2) A person "profits from prostitution" if [, acting other than as a prostitute receiving compensation for personally-rendered prostitution services,] the person accepts or receives money, anything of value, or other property pursuant to an agreement or understanding with any person whereby the person participates or is to participate in the proceeds of prostitution activity. |
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| 120 | 120 | | |
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| 121 | 121 | | (3) The definitions in subsections (1) and (2) do not include those engaged in conduct outlined in section 712-1200 as the prostituted person, or in conduct outlined in section 712-__ as the person engaged in commercial sexual exploitation." |
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| 122 | 122 | | |
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| 123 | 123 | | SECTION 6. Section 712-1202, Hawaii Revised Statutes, is amended to read as follows: |
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| 124 | 124 | | |
|---|
| 125 | 125 | | "§712-1202 Sex trafficking. (1) A person commits the offense of sex trafficking if the person knowingly: |
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| 126 | 126 | | |
|---|
| 127 | 127 | | (a) Advances prostitution or profits from 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 |
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| 128 | 128 | | |
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| 129 | 129 | | (b) Advances or profits from prostitution of a minor [; provided that with respect to the victim's age, the prosecution shall be required to prove only that the person committing the offense acted negligently]. |
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| 130 | 130 | | |
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| 131 | 131 | | (2) Sex trafficking is a class A felony. |
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| 132 | 132 | | |
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| 133 | 133 | | (3) As used in this section: |
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| 134 | 134 | | |
|---|
| 135 | 135 | | "Fraud" means making material false statements, misstatements, or omissions. |
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| 136 | 136 | | |
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| 137 | 137 | | "Minor" means a person who is less than eighteen years of age. |
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| 138 | 138 | | |
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| 139 | 139 | | "Threat" means any of the actions listed in section 707-764(1). |
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| 140 | 140 | | |
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| 141 | 141 | | (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." |
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| 142 | 142 | | |
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| 143 | 143 | | SECTION 7. Section 712-1207, Hawaii Revised Statutes, is amended to read as follows: |
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| 144 | 144 | | |
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| 145 | 145 | | "§712-1207 [Street solicitation of prostitution; designated areas.] Street prostitution and commercial sexual exploitation; designated areas. (1) It shall be unlawful for any person within the boundaries of Waikiki and while on any public property to: |
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| 146 | 146 | | |
|---|
| 147 | 147 | | (a) Offer or agree to engage in sexual conduct with another person in return for a fee[;] or anything of value; or |
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| 148 | 148 | | |
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| 149 | 149 | | (b) [Pay, agree to pay, or offer to pay] Provide, agree to provide, or offer to provide a fee or anything of value to another person to engage in sexual conduct. |
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| 150 | 150 | | |
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| 151 | 151 | | (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: |
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| 152 | 152 | | |
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| 153 | 153 | | (a) Offer or agree to engage in sexual conduct with another person in return for a fee[;] or anything of value; or |
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| 154 | 154 | | |
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| 155 | 155 | | (b) [Pay, agree to pay, or offer to pay] Provide, agree to provide, or offer to provide a fee or anything of value to another person to engage in sexual conduct. |
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| 156 | 156 | | |
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| 157 | 157 | | (3) Upon a recommendation of the chief of police of a county, that county may enact an ordinance that: |
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| 158 | 158 | | |
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| 159 | 159 | | (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 |
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| 160 | 160 | | |
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| 161 | 161 | | (b) Alters the boundaries of any existing area under paragraph (a); |
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| 162 | 162 | | |
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| 163 | 163 | | provided that not more than four areas may be designated within the State. |
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| 164 | 164 | | |
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| 165 | 165 | | (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). |
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| 166 | 166 | | |
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| 167 | 167 | | (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). |
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| 168 | 168 | | |
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| 169 | 169 | | (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. |
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| 170 | 170 | | |
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| 171 | 171 | | (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. |
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| 172 | 172 | | |
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| 173 | 173 | | (8) For purposes of this section: |
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| 174 | 174 | | |
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| 175 | 175 | | "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. |
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| 176 | 176 | | |
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| 177 | 177 | | "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. |
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| 178 | 178 | | |
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| 179 | 179 | | "Sexual conduct" has the same meaning as in section 712-1200(2). |
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| 180 | 180 | | |
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| 181 | 181 | | "Waikiki" means that area of Oahu bounded by the Ala Wai canal, the ocean, and Kapahulu Avenue. |
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| 182 | 182 | | |
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| 183 | 183 | | (9) This section shall apply to all counties; provided that if a county enacts an ordinance to regulate street [solicitation for prostitution,] prostitution and commercial sexual exploitation, 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." |
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| 184 | 184 | | |
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| 185 | 185 | | SECTION 8. Section 712-1209, Hawaii Revised Statutes, is amended to read as follows: |
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| 186 | 186 | | |
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| 187 | 187 | | "[[]§712-1209[] Solicitation of prostitution near schools or public parks.] Commercial sexual exploitation near schools or public parks. (1) A person commits the offense of [solicitation of prostitution] commercial sexual exploitation near schools or public parks if, within seven hundred fifty feet of a school or public park, the person [offers or agrees to pay] provides, agrees to provide, or offers to provide a fee or anything of value to another person to engage in sexual conduct. |
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| 188 | 188 | | |
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| 189 | 189 | | (2) [Solicitation of prostitution] Commercial sexual exploitation near schools or public parks is a misdemeanor. |
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| 190 | 190 | | |
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| 191 | 191 | | (3) For purposes of this section: |
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| 192 | 192 | | |
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| 193 | 193 | | "School" has the same meaning as in section 712-1249.6(6). |
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| 194 | 194 | | |
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| 195 | 195 | | "Sexual conduct" has the same meaning as in section 712-1200(2)." |
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| 196 | 196 | | |
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| 197 | 197 | | SECTION 9. Section 712-1209.1, Hawaii Revised Statutes, is amended to read as follows: |
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| 198 | 198 | | |
|---|
| 199 | 199 | | "§712-1209.1 [Solicitation of a minor for prostitution.] Commercial sexual exploitation of a minor. (1) A person eighteen years of age or older commits the offense of [solicitation of a minor for prostitution] commercial sexual exploitation of a minor if the person intentionally, knowingly, or recklessly [offers or agrees to pay a fee to a minor or 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.]: |
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| 200 | 200 | | |
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| 201 | 201 | | (a) Provides anything of value to a minor or third person as compensation for having engaged in sexual conduct with a minor; |
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| 202 | 202 | | |
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| 203 | 203 | | (b) 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 |
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| 204 | 204 | | |
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| 205 | 205 | | (c) Solicits, offers, or requests to engage in sexual conduct with a minor in return for anything of value. |
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| 206 | 206 | | |
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| 207 | 207 | | (2) [Solicitation of a minor for prostitution] Commercial sexual exploitation of a minor is a class [C] B felony. |
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| 208 | 208 | | |
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| 209 | 209 | | (3) [A]In addition to any other authorized disposition, a person convicted of committing the offense of [solicitation of a minor for prostitution] commercial sexual exploitation of a minor shall be [imposed] sentenced to pay a fine of not less than $5,000[; provided that $5,000 of the imposed fine shall be credited to the general fund]. |
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| 210 | 210 | | |
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| 211 | 211 | | (4) This section shall not apply to any member of a police department, a sheriff, or a law enforcement officer [who offers or agrees to pay a fee to a minor] while acting in the course and scope of duties. |
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| 212 | 212 | | |
|---|
| 213 | 213 | | (5) The state of mind requirement for [this] the offense under subsection (1)(a) is not applicable to the fact that the [person solicited] victim was a minor. A person is strictly liable with respect to the attendant circumstance that the [person solicited] victim was a minor. |
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| 214 | 214 | | |
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| 215 | 215 | | (6) Consent of a minor to the sexual conduct does not constitute a defense to any offense in this section. |
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| 216 | 216 | | |
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| 217 | 217 | | [(6)](7) For purposes of this section: |
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| 218 | 218 | | |
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| 219 | 219 | | "Minor" means a person who is less than eighteen years of age. |
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| 220 | 220 | | |
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| 221 | 221 | | "Sexual conduct" has the same meaning as in section 712-1200(2)." |
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| 222 | 222 | | |
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| 223 | 223 | | SECTION 10. Section 712-1209.5, Hawaii Revised Statutes, is amended to read as follows: |
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| 224 | 224 | | |
|---|
| 225 | 225 | | "[[]§712-1209.5[] Habitual solicitation of prostitution.] Habitual commercial sexual exploitation. (1) A person commits the offense of habitual [solicitation of prostitution] commercial sexual exploitation if the person is a habitual [prostitution] commercial sexual exploitation offender and [pays, agrees to pay, or offers to pay] provides, agrees to provide, or offers to provide a fee or anything of value to another person to engage in sexual conduct. |
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| 226 | 226 | | |
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| 227 | 227 | | (2) For the purposes of this section, a person has the status of a "habitual [prostitution] commercial sexual exploitation offender" if the person, at the time of the conduct for which the person is charged, had two or more convictions within ten years of the instant offense for: |
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| 228 | 228 | | |
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| 229 | 229 | | (a) [Prostitution,] Commercial sexual exploitation, in violation of section [712-1200(1)(b);] 712-___; |
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| 230 | 230 | | |
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| 231 | 231 | | (b) Street [solicitation of prostitution] commercial sexual exploitation, in violation of section 712-1207(1)(b) or (2)(b); |
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| 232 | 232 | | |
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| 233 | 233 | | (c) Habitual [solicitation of prostitution,] commercial sexual exploitation, in violation of this section; |
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| 234 | 234 | | |
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| 235 | 235 | | (d) An offense of this jurisdiction or any other jurisdiction that is comparable to one of the offenses in paragraph (a), (b), or (c); or |
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| 236 | 236 | | |
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| 237 | 237 | | (e) Any combination of the offenses in paragraph (a), (b), (c), or (d). |
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| 238 | 238 | | |
|---|
| 239 | 239 | | A conviction for purposes of this section is a judgment on the verdict or a finding of guilt, or a plea of guilty or nolo contendere. The convictions must have occurred on separate dates and be for separate incidents on separate dates. At the time of the instant offense, the conviction must not have been expunged by pardon, reversed, or set aside. |
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| 240 | 240 | | |
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| 241 | 241 | | (3) Habitual [solicitation of prostitution] commercial sexual exploitation is a class C felony." |
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| 242 | 242 | | |
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| 243 | 243 | | SECTION 11. Section 712-1209.6, Hawaii Revised Statutes, is amended to read as follows: |
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| 244 | 244 | | |
|---|
| 245 | 245 | | "§712-1209.6 Prostitution; motion to vacate conviction. (1) A person convicted of committing the offense of prostitution under section 712-1200[(1)(a)], loitering for the purpose of engaging in or advancing prostitution under section 712-1206(2), street [solicitation of] prostitution in designated areas under section 712-1207(1)(a) or 712-1207(2)(a), or convicted of a lesser offense when originally charged with a violation of section 712-1200[(1)(a)], 712-1206(2), or 712-1207(1)(a) or 712-1207(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. |
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| 246 | 246 | | |
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| 247 | 247 | | (2) The court shall hold a hearing on a motion filed under this section to review the defendant's record over the three years after the date of the original conviction under section 712-1200[(1)(a)], 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 penal code within this three year period, the court shall vacate the conviction." |
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| 248 | 248 | | |
|---|
| 249 | 249 | | SECTION 12. Section 712A-4, Hawaii Revised Statutes, is amended to read as follows: |
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| 250 | 250 | | |
|---|
| 251 | 251 | | "§712A-4 Covered offenses. Offenses for which property is subject to forfeiture under this chapter are: |
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| 252 | 252 | | |
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| 253 | 253 | | (a) All offenses that specifically authorize forfeiture; |
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| 254 | 254 | | |
|---|
| 255 | 255 | | (b) Murder, kidnapping, labor trafficking, unlicensed sale of liquor, unlicensed manufacture of liquor, gambling, criminal property damage, robbery, bribery, extortion, theft, unauthorized entry into motor vehicle, burglary, money laundering, trademark counterfeiting, insurance fraud, promoting a dangerous, harmful, or detrimental drug, commercial promotion of marijuana, methamphetamine trafficking, manufacturing of a controlled substance with a child present, promoting child abuse, promoting prostitution, sex trafficking, [solicitation of a minor for prostitution,] commercial sexual exploitation of a minor, habitual [solicitation of prostitution,] commercial sexual exploitation, or electronic enticement of a child that is chargeable as a felony offense under state law; |
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| 256 | 256 | | |
|---|
| 257 | 257 | | (c) The manufacture, sale, or distribution of a controlled substance in violation of chapter 329, promoting detrimental drugs or intoxicating compounds, promoting pornography, promoting pornography for minors, or [solicitation of prostitution] commercial sexual exploitation near schools or public parks, which is chargeable as a felony or misdemeanor offense, but not as a petty misdemeanor, under state law; and |
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| 258 | 258 | | |
|---|
| 259 | 259 | | (d) The attempt, conspiracy, solicitation, coercion, or intimidation of another to commit any offense for which property is subject to forfeiture." |
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| 260 | 260 | | |
|---|
| 261 | 261 | | SECTION 13. Section 806-83, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows: |
|---|
| 262 | 262 | | |
|---|
| 263 | 263 | | "(a) Criminal charges may be instituted by written information for a felony when the charge is a class C felony, except under: |
|---|
| 264 | 264 | | |
|---|
| 265 | 265 | | (1) Section 159-28 (bribery related to the Hawaii Meat Inspection Act); |
|---|
| 266 | 266 | | |
|---|
| 267 | 267 | | (2) Section 161-28 (bribery related to the Hawaii Poultry Inspection Act); |
|---|
| 268 | 268 | | |
|---|
| 269 | 269 | | (3) Section 707-712.5 (assault against a law enforcement officer in the first degree); |
|---|
| 270 | 270 | | |
|---|
| 271 | 271 | | (4) Section 707-716 (terroristic threatening in the first degree); |
|---|
| 272 | 272 | | |
|---|
| 273 | 273 | | (5) Section 707-732 (sexual assault in the third degree); |
|---|
| 274 | 274 | | |
|---|
| 275 | 275 | | (6) Section 707-741 (incest); |
|---|
| 276 | 276 | | |
|---|
| 277 | 277 | | (7) Section 707-752 (promoting child abuse in the third degree); |
|---|
| 278 | 278 | | |
|---|
| 279 | 279 | | (8) Section 708-880 (commercial bribery); |
|---|
| 280 | 280 | | |
|---|
| 281 | 281 | | (9) Section 709-904.5 (compensation by an adult of juveniles for crimes); |
|---|
| 282 | 282 | | |
|---|
| 283 | 283 | | (10) Section 710-1026.9 (resisting an order to stop a motor vehicle in the first degree); |
|---|
| 284 | 284 | | |
|---|
| 285 | 285 | | (11) Section 710-1070 (bribery of or by a witness); |
|---|
| 286 | 286 | | |
|---|
| 287 | 287 | | (12) Section 710-1071 (intimidating a witness); |
|---|
| 288 | 288 | | |
|---|
| 289 | 289 | | (13) Section 710-1072.2 (retaliating against a witness); |
|---|
| 290 | 290 | | |
|---|
| 291 | 291 | | (14) Section 710-1073 (bribery of or by a juror); |
|---|
| 292 | 292 | | |
|---|
| 293 | 293 | | (15) Section 710-1075 (jury tampering); |
|---|
| 294 | 294 | | |
|---|
| 295 | 295 | | (16) Section 710-1075.5 (retaliating against a juror); |
|---|
| 296 | 296 | | |
|---|
| 297 | 297 | | (17) Section 711-1106.4 (aggravated harassment by stalking); |
|---|
| 298 | 298 | | |
|---|
| 299 | 299 | | (18) Section 711-1110.9 (violation of privacy in the first degree); |
|---|
| 300 | 300 | | |
|---|
| 301 | 301 | | (19) Section 712-1208 (promoting travel for prostitution); |
|---|
| 302 | 302 | | |
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| 303 | 303 | | [(20) Section 712-1209.1 (solicitation of a minor for prostitution); |
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| 304 | 304 | | |
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| 305 | 305 | | (21)] (20) Section 712-1209.5 (habitual [solicitation of prostitution);] commercial sexual exploitation); |
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| 306 | 306 | | |
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| 307 | 307 | | [(22)] (21) Section 712-1215 (promoting pornography for minors); |
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| 308 | 308 | | |
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| 309 | 309 | | [(23)] (22) Section 712-1218 (failure to maintain age verification records of sexual performers); |
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| 310 | 310 | | |
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| 311 | 311 | | [(24)] (23) Section 712-1218.5 (failure to maintain age verification records of sexually exploited individuals); and |
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| 312 | 312 | | |
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| 313 | 313 | | [(25)] (24) Section 712-1219 (failure to affix information disclosing location of age verification records of sexual performers)." |
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| 314 | 314 | | |
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| 315 | 315 | | SECTION 14. Section 846E-1, Hawaii Revised Statutes, is amended by amending the definition of "sexual offense" to read as follows: |
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| 316 | 316 | | |
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| 317 | 317 | | ""Sexual offense" means an offense that is: |
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| 318 | 318 | | |
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| 319 | 319 | | (1) Set forth in section 707-730(1), 707-731(1), 707-732(1), 707-733(1)(a), 707-733.6, 712-___(4), 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; |
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| 320 | 320 | | |
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| 321 | 321 | | (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; |
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| 322 | 322 | | |
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| 323 | 323 | | (3) An act that consists of: |
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| 324 | 324 | | |
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| 325 | 325 | | (A) Criminal sexual conduct toward a minor, including but not limited to an offense set forth in section 707-759; |
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| 326 | 326 | | |
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| 327 | 327 | | (B) Solicitation of a minor who is less than fourteen years old to engage in sexual conduct; |
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| 328 | 328 | | |
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| 329 | 329 | | (C) Use of a minor in a sexual performance; |
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| 330 | 330 | | |
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| 331 | 331 | | (D) Production, distribution, or possession of child pornography chargeable as a felony under section 707-750, 707-751, or 707-752; |
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| 332 | 332 | | |
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| 333 | 333 | | (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 |
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| 334 | 334 | | |
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| 335 | 335 | | (F) [Solicitation of a minor for prostitution] Commercial sexual exploitation of a minor in violation of section 712-1209.1; |
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| 336 | 336 | | |
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| 337 | 337 | | (4) A violation of privacy under section 711-1110.9; |
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| 338 | 338 | | |
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| 339 | 339 | | (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); |
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| 340 | 340 | | |
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| 341 | 341 | | (6) A criminal offense that is comparable to or that exceeds a sexual offense as defined in paragraphs (1) through (5); or |
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| 342 | 342 | | |
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| 343 | 343 | | (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)." |
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| 344 | 344 | | |
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| 345 | 345 | | SECTION 15. Section 853-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows: |
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| 346 | 346 | | |
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| 347 | 347 | | "(a) This chapter shall not apply when: |
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| 348 | 348 | | |
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| 349 | 349 | | (1) The offense charged involves the intentional, knowing, reckless, or negligent killing of another person; |
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| 350 | 350 | | |
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| 351 | 351 | | (2) The offense charged is: |
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| 352 | 352 | | |
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| 353 | 353 | | (A) A felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person; or |
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| 354 | 354 | | |
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| 355 | 355 | | (B) A misdemeanor or petty misdemeanor that carries a mandatory minimum sentence and that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person; |
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| 356 | 356 | | |
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| 357 | 357 | | provided that the prohibition in this paragraph shall not apply to offenses described in section 709-906(18); |
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| 358 | 358 | | |
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| 359 | 359 | | (3) The offense charged involves a conspiracy or solicitation to intentionally, knowingly, or recklessly kill another person or to cause serious bodily injury to another person; |
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| 360 | 360 | | |
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| 361 | 361 | | (4) The offense charged is a class A felony; |
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| 362 | 362 | | |
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| 363 | 363 | | (5) The offense charged is nonprobationable; |
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| 364 | 364 | | |
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| 365 | 365 | | (6) The defendant has been convicted of any offense defined as a felony by the Hawaii Penal Code or has been convicted for any conduct that if perpetrated in this State would be punishable as a felony; |
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| 366 | 366 | | |
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| 367 | 367 | | (7) The defendant is found to be a law violator or delinquent child for the commission of any offense defined as a felony by the Hawaii Penal Code or for any conduct that if perpetrated in this State would constitute a felony; |
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| 368 | 368 | | |
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| 369 | 369 | | (8) The defendant has a prior conviction for a felony committed in any state, federal, or foreign jurisdiction; |
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| 370 | 370 | | |
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| 371 | 371 | | (9) A firearm was used in the commission of the offense charged; |
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| 372 | 372 | | |
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| 373 | 373 | | (10) The defendant is charged with the distribution of a dangerous, harmful, or detrimental drug to a minor; |
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| 374 | 374 | | |
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| 375 | 375 | | (11) The defendant has been charged with a felony offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior offense, regardless of whether the period of deferral has already expired; |
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| 376 | 376 | | |
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| 377 | 377 | | (12) The defendant has been charged with a misdemeanor offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior felony, misdemeanor, or petty misdemeanor for which the period of deferral has not yet expired; |
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| 378 | 378 | | |
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| 379 | 379 | | (13) The offense charged is: |
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| 380 | 380 | | |
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| 381 | 381 | | (A) Escape in the first degree; |
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| 382 | 382 | | |
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| 383 | 383 | | (B) Escape in the second degree; |
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| 384 | 384 | | |
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| 385 | 385 | | (C) Promoting prison contraband in the first degree; |
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| 386 | 386 | | |
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| 387 | 387 | | (D) Promoting prison contraband in the second degree; |
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| 388 | 388 | | |
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| 389 | 389 | | (E) Bail jumping in the first degree; |
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| 390 | 390 | | |
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| 391 | 391 | | (F) Bail jumping in the second degree; |
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| 392 | 392 | | |
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| 393 | 393 | | (G) Bribery; |
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| 394 | 394 | | |
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| 395 | 395 | | (H) Bribery of or by a witness; |
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| 396 | 396 | | |
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| 397 | 397 | | (I) Intimidating a witness; |
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| 398 | 398 | | |
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| 399 | 399 | | (J) Bribery of or by a juror; |
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| 400 | 400 | | |
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| 401 | 401 | | (K) Intimidating a juror; |
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| 402 | 402 | | |
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| 403 | 403 | | (L) Jury tampering; |
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| 404 | 404 | | |
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| 405 | 405 | | (M) Promoting prostitution; |
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| 406 | 406 | | |
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| 407 | 407 | | (N) Abuse of family or household member except as provided in paragraph (2) and section 709-906(18); |
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| 408 | 408 | | |
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| 409 | 409 | | (O) Sexual assault in the second degree; |
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| 410 | 410 | | |
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| 411 | 411 | | (P) Sexual assault in the third degree; |
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| 412 | 412 | | |
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| 413 | 413 | | (Q) A violation of an order issued pursuant to chapter 586; |
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| 414 | 414 | | |
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| 415 | 415 | | (R) Promoting child abuse in the second degree; |
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| 416 | 416 | | |
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| 417 | 417 | | (S) Promoting child abuse in the third degree; |
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| 418 | 418 | | |
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| 419 | 419 | | (T) Electronic enticement of a child in the first degree; |
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| 420 | 420 | | |
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| 421 | 421 | | (U) Electronic enticement of a child in the second degree; |
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| 422 | 422 | | |
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| 423 | 423 | | (V) [Prostitution] Commercial sexual exploitation pursuant to section [712-1200(1)(b)]712-____; |
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| 424 | 424 | | |
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| 425 | 425 | | (W) Street [solicitation of] prostitution and commercial sexual exploitation under section 712-1207(1)(b) or (2)(b); |
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| 426 | 426 | | |
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| 427 | 427 | | (X) [Solicitation of prostitution] Commercial sexual exploitation near schools or public parks under section 712-1209; |
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| 428 | 428 | | |
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| 429 | 429 | | (Y) Habitual [solicitation of prostitution] commercial sexual exploitation under section 712-1209.5; or |
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| 430 | 430 | | |
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| 431 | 431 | | (Z) [Solicitation of a minor for prostitution] Commercial sexual exploitation of a minor under section 712-1209.1; |
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| 432 | 432 | | |
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| 433 | 433 | | (14) The defendant has been charged with: |
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| 434 | 434 | | |
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| 435 | 435 | | (A) Knowingly or intentionally falsifying any report required under chapter 11, part XIII with the intent to circumvent the law or deceive the campaign spending commission; or |
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| 436 | 436 | | |
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| 437 | 437 | | (B) Violating section 11-352 or 11-353; or |
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| 438 | 438 | | |
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| 439 | 439 | | (15) The defendant holds a commercial driver's license and has been charged with violating a traffic control law, other than a parking law, in connection with the operation of any type of motor vehicle." |
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| 440 | 440 | | |
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| 441 | 441 | | SECTION 16. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before the effective date of this Act. |
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| 442 | 442 | | |
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| 443 | 443 | | SECTION 17. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. |
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| 444 | 444 | | |
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| 445 | 445 | | SECTION 18. This Act shall take effect upon its approval. |
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| 446 | 446 | | |
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| 447 | 447 | | |
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| 448 | 448 | | |
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| 449 | 449 | | INTRODUCED BY: _____________________________ |
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| 450 | 450 | | BY REQUEST |
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| 451 | 451 | | |
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| 452 | 452 | | INTRODUCED BY: |
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| 453 | 453 | | |
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| 454 | 454 | | _____________________________ |
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| 455 | 455 | | |
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| 456 | 456 | | |
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| 457 | 457 | | |
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| 458 | 458 | | BY REQUEST |
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| 459 | 459 | | |
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| 460 | 460 | | Report Title: Crime; Sex Trafficking, Prostitution, and Related Offenses Description: Creates a separate offense for those who provide anything of value to engage in sexual conduct with another; adds sex trafficking to offenses that can be prosecuted at any time; makes a person strictly liable for sex trafficking of a minor in terms of the victim's age; changes the name of the crime of solicitation of a minor for prostitution to commercial sexual exploitation of a minor while closing loopholes in the law that allow offenders to escape liability, and increases the grade of offense to a class B felony; adds "anything of value" to reflect the reality of non-monetary compensation used in commercial sexual exploitation. The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent. |
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| 461 | 461 | | |
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| 462 | 462 | | |
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| 463 | 463 | | |
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| 464 | 464 | | |
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| 465 | 465 | | |
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| 466 | 466 | | Report Title: |
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| 467 | 467 | | |
|---|
| 468 | 468 | | Crime; Sex Trafficking, Prostitution, and Related Offenses |
|---|
| 469 | 469 | | |
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| 470 | 470 | | |
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| 471 | 471 | | |
|---|
| 472 | 472 | | Description: |
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| 473 | 473 | | |
|---|
| 474 | 474 | | Creates a separate offense for those who provide anything of value to engage in sexual conduct with another; adds sex trafficking to offenses that can be prosecuted at any time; makes a person strictly liable for sex trafficking of a minor in terms of the victim's age; changes the name of the crime of solicitation of a minor for prostitution to commercial sexual exploitation of a minor while closing loopholes in the law that allow offenders to escape liability, and increases the grade of offense to a class B felony; adds "anything of value" to reflect the reality of non-monetary compensation used in commercial sexual exploitation. |
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| 475 | 475 | | |
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| 476 | 476 | | |
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| 477 | 477 | | |
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| 478 | 478 | | |
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| 479 | 479 | | |
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| 480 | 480 | | |
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| 481 | 481 | | |
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| 482 | 482 | | The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent. |
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