| 47 | | - | SECTION 1. The legislature finds that it has made concerted efforts since the 2010s to reduce and combat sex trafficking in the State and protect those victimized by prostitution. One of these efforts has been amending sections 712-1202 and 712-1203, Hawaii Revised Statutes, to specifically target those who benefit the most from prostitution, such as sex traffickers and pimps. The legislature further finds that the Hawaii supreme court decision in State v. Ibarra, 153 Hawaiʻi 50, 526 P.3d 575 (2023), indicates a need for the sex trafficking and promoting prostitution criminal offense statutes to be further clarified. Accordingly, the purpose of this Act is to clarify and update the sex trafficking and promoting prostitution criminal offense statutes by clarifying the definition of "profits from prostitution" and making technical and other housekeeping amendments. SECTION 2. Section 350-1, Hawaii Revised Statutes, is amended by amending the definition of "child abuse or neglect" to read as follows: ""Child abuse or neglect" means: (1) The acts or omissions of any person who, or legal entity [which,] that, is in any manner or degree related to the child, is residing with the child, or is otherwise responsible for the child's care, that have resulted in the physical or psychological health or welfare of the child, who is under the age of eighteen, to be harmed, or to be subject to any reasonably foreseeable, substantial risk of being harmed. The acts or omissions [are] indicated for the purposes of reports by circumstances [that] include but are not limited to: (A) When the child exhibits evidence of: (i) Substantial or multiple skin bruising or any other internal bleeding; (ii) Any injury to skin causing substantial bleeding; (iii) Malnutrition; (iv) Failure to thrive; (v) Burn or burns; (vi) Poisoning; (vii) Fracture of any bone; (viii) Subdural hematoma; (ix) Soft tissue swelling; (x) Extreme pain; (xi) Extreme mental distress; (xii) Gross degradation; or (xiii) Death; and [such] the injury is not justifiably explained, or when the history given concerning [such] the condition or death is at variance with the degree or type of [such] the condition or death, or circumstances indicate that [such] the condition or death may not be the product of an accidental occurrence; (B) When the child has been the victim of sexual contact or conduct, including but not limited to sexual assault as defined in the Penal Code, molestation, sexual fondling, incest, or prostitution; obscene or pornographic photographing, filming, or depiction; or other similar forms of sexual exploitation, including but not limited to acts that constitute an offense pursuant to section [712-1202(1)(b);] 712-1202(1)(c); (C) When there exists injury to the psychological capacity of a child as is evidenced by an observable and substantial impairment in the child's ability to function; (D) When the child is not provided in a timely manner with adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision; (E) When the child is provided with dangerous, harmful, or detrimental drugs as defined by section 712-1240; provided that this subparagraph shall not apply when such drugs are provided to the child pursuant to the direction or prescription of a practitioner, as defined in section 712-1240; or (F) When the child has been the victim of labor trafficking under chapter 707; or (2) The acts or omissions of any person that have resulted in sex trafficking or severe forms of trafficking in persons; provided that no finding by the department pursuant to this chapter shall be used as conclusive evidence that a person has committed an offense under part VIII of chapter 707 or section 712-1202." SECTION 3. Section 588-2, Hawaii Revised Statutes, is amended by amending the definition of "child sexual abuse" to read as follows: ""Child sexual abuse" means any of the offenses described under chapter 707, part V, when committed against a person under the age of eighteen years or that damage or injure a child's physical or psychological health or welfare, where the child has been the victim of sexual contact or conduct, including sexual assault; sodomy; molestation; sexual fondling; incest; prostitution; obscene or pornographic photographing, filming, or depiction; or other similar forms of sexual exploitation, including but not limited to acts that constitute an offense pursuant to section [712-1202(1)(b).] 712-1202(1)(c)." SECTION 4. Section 712-1200, Hawaii Revised Statutes, is amended to read as follows: "§712-1200 Prostitution. (1) A person commits the offense of prostitution if the person engages in, or agrees or offers to engage in, sexual conduct with another person in return for a fee or anything of value. [(2) As used in this section: "Minor" means a person who is less than eighteen years of age. "Sexual conduct" means "sexual penetration", "deviate sexual intercourse", or "sexual contact", as those terms are defined in section 707-700, or "sadomasochistic abuse" as defined in section 707-752. (3)] (2) Prostitution [is] shall be a petty misdemeanor; provided that if the person who commits the offense under subsection (1) is a minor, prostitution [is] shall be a violation. [(4)] (3) A person convicted of committing the offense of prostitution as a petty misdemeanor shall be sentenced as follows: (a) For the first offense, when the court has not deferred further proceedings pursuant to chapter 853, a fine of no less than $500 but no more than $1,000 and the person may be sentenced to a term of imprisonment of no more than thirty days or probation; provided that in the event the convicted person defaults in payment of the fine, and the default was not contumacious, the court may make an order converting the unpaid portion of the fine to community service as authorized by section 706‑605(1); (b) For any subsequent offense, a fine of no less than $500 but no more than $1,000 and a term of imprisonment of thirty days or probation, without possibility of deferral of further proceedings pursuant to chapter 853 and without possibility of suspension of sentence; and (c) For the purpose of this subsection, if the court has deferred further proceedings pursuant to chapter 853, [and] the defendant, notwithstanding any provision of chapter 853 to the contrary, [the defendant] shall not be eligible to apply for expungement pursuant to section 831-3.2 until three years following discharge. A plea previously entered by a defendant under section 853-1 for a violation of this section shall be considered a prior offense. [(5)] (4) This section shall not apply to any member of a police department, a sheriff, or a law enforcement officer acting in the course and scope of duties; provided that the member of a police department, sheriff, or law enforcement officer is engaging in undercover operations; provided further that under no circumstances shall sexual contact initiated by a member of a police department, sheriff, or law enforcement officer[;] or sexual penetration[;] or sadomasochistic abuse by a member of a police department, sheriff, or law enforcement officer be considered to fall within the course and scope of duties. [(6)] (5) A minor may be taken into custody by any police officer without order of the judge when there are reasonable grounds to believe that the minor has violated subsection (1). The minor shall be released, referred, or transported pursuant to section 571-31(b). The minor shall be subject to the jurisdiction of the family court pursuant to section 571-11(1), including for the purposes of custody, detention, diversion, and access to services and resources." SECTION 5. Section 712-1200.5, Hawaii Revised Statutes, is amended to read as follows: "[[]§712-1200.5[]] Commercial sexual exploitation. (1) A person commits the offense of commercial sexual exploitation if the person provides, agrees to provide, or offers to provide a fee or anything of value to another to engage in sexual conduct. [(2) As used in this section, "sexual conduct" has the same meaning as in section 712‑1200(2). (3)] (2) Except as provided in subsection [(4),] (3), commercial sexual exploitation [is] shall be a petty misdemeanor. [(4)] (3) Commercial sexual exploitation [is] shall be a class C felony if the person who commits the offense under subsection (1) does so in reckless disregard of the fact that the person exploited is a victim of sex trafficking. [(5)] (4) A person convicted of committing the offense of commercial sexual exploitation as a petty misdemeanor shall be sentenced as follows: (a) For the first offense, a fine of no less than $500 but no more than $1,000 and the person may be sentenced to a term of imprisonment of no more than thirty days or probation; provided that in the event the convicted person defaults in payment of the fine, and the default was not contumacious, the court may order conversion of the unpaid portion of the fine to community service as authorized by section 706-605(1); (b) For any subsequent offense, a fine of no less than $500 but no more than $1,000 and a term of imprisonment or probation of no more than thirty days, without possibility of suspension of sentence; and (c) For purposes of this subsection, the court may impose as a condition of probation that the defendant complete a course of exploitation intervention classes; provided that the court shall only impose the condition for one term of probation. [(6)] (5) This section shall not apply to any member of a police department, a sheriff, or a law enforcement officer acting in the course and scope of duties; provided that the member of a police department, sheriff, or law enforcement officer is engaging in undercover operations; provided further that under no circumstances shall sexual contact initiated by a member of a police department, sheriff, or law enforcement officer[;] or sexual penetration[;] or sadomasochistic abuse by a member of a police department, sheriff, or law enforcement officer be considered to fall within the course and scope of duties." SECTION 6. Section 712-1201, Hawaii Revised Statutes, is amended to read as follows: "§712-1201 [Advancing prostitution; profiting from prostitution; definition] Definitions of terms[.] in this part. In [sections 712-1202 and 712-1203: (1) A person "advances] this part, unless a different meaning is required or specified: "Advances prostitution" [if] means that the person knowingly causes or aids [a] another person to commit or engage in prostitution, procures or solicits patrons for prostitution, provides persons for prostitution purposes, permits premises to be regularly used for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution[;]. "Minor" means a person who is less than eighteen years of age. [(2) A person "profits] "Profits from prostitution" [if] means that the person knowingly accepts or receives money, anything of value, or other property pursuant to an agreement or understanding with [any person] a third party whereby the person participates or is to participate in the proceeds of prostitution activity[; and], regardless of whether the money, thing of value, or other property is accepted or received in excess of expenditures or as reimbursement or repayment of any debt. [(3) The definitions in subsections (1) and (2) shall not include those engaged in conduct outlined in section 712-1200 as the prostituted person or section 712-1200.5 as the person engaged in commercial sexual exploitation.] "Sexual conduct" means "sexual penetration", "deviate sexual intercourse", or "sexual contact", as those terms are defined in section 707-700, or "sadomasochistic abuse" as defined in section 707-752." SECTION 7. Section 712-1202, Hawaii Revised Statutes, is amended to read as follows: "§712-1202 Sex trafficking. (1) A person commits the offense of sex trafficking if the person knowingly: (a) Advances prostitution by compelling or inducing a person by force, threat, fraud, coercion, or intimidation to engage in prostitution [,or profits from such conduct by another; or]; (b) Profits from prostitution that is the result of another person compelling or inducing a person by force, threat, fraud, coercion, or intimidation to engage in prostitution; or [(b)] (c) Advances prostitution or profits from prostitution of a minor. (2) Sex trafficking [is] shall be a class A felony. (3) [As used in] For the purposes of 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)] (1)(c) is not applicable to the fact that the victim was a minor. A person is strictly liable with respect to the attendant circumstances that the victim was a minor. (5) No person shall be convicted under this section if the conduct of the person underlying the offense consists exclusively of the person's own acts of: (a) Prostitution as a prostituted person as provided in section 712-1200; or (b) Commercial sexual exploitation as provided in section 712-1200.5." SECTION 8. Section 712-1203, Hawaii Revised Statutes, is amended to read as follows: "§712-1203 Promoting prostitution. (1) A person commits the offense of promoting prostitution if the person knowingly advances prostitution or profits from prostitution. (2) Promoting prostitution [is] shall be a class B felony. (3) No person shall be convicted under this section if the conduct of the person underlying the offense consists exclusively of the person's own acts of: (a) Prostitution as a prostituted person as provided in section 712-1200; or (b) Commercial sexual exploitation as provided in section 712-1200.5." SECTION 9. Section 712-1206, Hawaii Revised Statutes, is amended to read as follows: "[[]§712-1206[]] Loitering for the purpose of engaging in or advancing prostitution. (1) For the purposes of this section, "public place" means any street, sidewalk, bridge, alley or alleyway, plaza, park, driveway, parking lot or transportation facility or the doorways and entrance ways to any building [which] that fronts on any of the aforesaid places, or a motor vehicle in or on any such place. (2) Any person who remains or wanders about in a public place and repeatedly beckons to [or], repeatedly stops, [or] repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, [or] repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons for the purpose of committing the crime of prostitution as that term is defined in section 712-1200 shall be guilty of a violation. (3) Any person who remains or wanders about in a public place and repeatedly beckons to, [or] repeatedly stops, or repeatedly attempts to engage passers-by in conversation, [or] repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons for the purpose of [committing the crime of] advancing prostitution [as that term is defined in section 712-1201(1) is] shall be guilty of a petty misdemeanor." SECTION 10. Section 712-1207, Hawaii Revised Statutes, is amended by amending subsection (8) to read as follows: "(8) For purposes of this section: "Area" means any zone within a county that is defined with specific boundaries and designated as a zone of significant prostitution by this section or a county ordinance. "Public property" includes any street, highway, road, sidewalk, alley, lane, bridge, parking lot, park, or other property owned or under the jurisdiction of any governmental entity or otherwise open to the public. ["Sexual conduct" has the same meaning as in section 712-1200(2).] "Waikiki" means that area of Oahu bounded by the Ala Wai canal, the ocean, and Kapahulu avenue." SECTION 11. Section 712-1209, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows: "(3) For purposes of this section[: "School"], "school" has the same meaning as in section 712-1249.6(6). ["Sexual conduct" has the same meaning as in section 712-1200(2).]" SECTION 12. Section 712-1209.1, Hawaii Revised Statutes, is amended to read as follows: "§712-1209.1 Commercial sexual exploitation of a minor. (1) A person eighteen years of age or older commits the offense of commercial sexual exploitation of a minor if the person intentionally, knowingly, or recklessly: (a) Offers or agrees to provide anything of value to a member of a police department, a sheriff, or a law enforcement officer who represents that person's self as a minor to engage in sexual conduct; (b) Provides anything of value to a minor or third person as compensation for having engaged in sexual conduct with a minor; (c) Agrees to provide or offers to provide anything of value to a minor or third person for the purpose of engaging in sexual conduct with a minor; or (d) Solicits, offers to engage in, or requests to engage in sexual conduct with a minor in return for anything of value. (2) Commercial sexual exploitation of a minor [is] shall be a class B felony. (3) In addition to any other authorized disposition, a person convicted of committing the offense of commercial sexual exploitation of a minor shall be sentenced to pay a fine of no less than $5,000. (4) This section shall not apply to any member of a police department, a sheriff, or a law enforcement officer acting in the course and scope of duties; provided that the member of a police department, sheriff, or law enforcement officer is engaging in undercover operations; provided further that under no circumstances shall sexual contact initiated by a member of a police department, sheriff, or law enforcement officer[;] or sexual penetration[;] or sadomasochistic abuse by a member of a police department, sheriff, or law enforcement officer be considered to fall within the course and scope of duties. (5) The state of mind requirement for the offense under subsection (1)(b) [is] shall not be applicable to the fact that the victim was a minor. A person [is] shall be strictly liable with respect to the attendant circumstance that the victim was a minor; provided that the person had a reasonable opportunity to observe the victim. (6) Consent of a minor to the sexual conduct [does] shall not constitute a defense to any offense in this section. [(7) For purposes of this section: "Minor" means a person who is less than eighteen years of age. "Sexual conduct" has the same meaning as in section 712‑1200(2).]" SECTION 13. Section 846E-1, Hawaii Revised Statutes, is amended by amending the definition of "sexual offense" to read as follows: ""Sexual offense" means an offense that is: (1) Set forth in section 707-730(1), 707-731(1), 707‑732(1), 707-733(1)(a), 707-733.6, [712-1200.5(4),] 712-1200.5(3), 712-1202(1), or 712-1203(1), but excludes conduct that is criminal only because of the age of the victim, as provided in section 707‑730(1)(b), or section 707-732(1)(b) if the perpetrator is under the age of eighteen; (2) An act defined in section 707-720 if the charging document for the offense for which there has been a conviction alleged intent to subject the victim to a sexual offense; (3) An act that consists of: (A) Criminal sexual conduct toward a minor, including but not limited to an offense set forth in section 707-759; (B) Solicitation of a minor who is less than fourteen years old to engage in sexual conduct; (C) Use of a minor in a sexual performance; (D) Production, distribution, or possession of child pornography chargeable as a felony under section 707-750, 707-751, or 707-752; (E) Electronic enticement of a child chargeable under section 707-756 or 707-757 if the offense was committed with the intent to promote or facilitate the commission of another covered offense as defined in this section; or (F) Commercial sexual exploitation of a minor in violation of section 712-1209.1; (4) A violation of privacy under section 711-1110.9; (5) An act, as described in chapter 705, that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the offenses designated in paragraphs (1) through (4); (6) A criminal offense that is comparable to or that exceeds a sexual offense as defined in paragraphs (1) through (5); or (7) Any federal, military, out-of-state, tribal, or foreign conviction for any offense that under the laws of this State would be a sexual offense as defined in paragraphs (1) through (6)." SECTION 14. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 15. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 16. This Act shall take effect on July 1, 2025. |
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| 47 | + | SECTION 1. The legislature finds that it has made concerted efforts since the 2010s to reduce and combat sex trafficking in the State and protect those victimized by prostitution. One of these efforts has been amending sections 712-1202 and 712-1203, Hawaii Revised Statutes, to specifically target those who benefit the most from prostitution, such as sex traffickers and pimps. The legislature further finds that the Hawaii supreme court decision in State v. Ibarra, 153 Hawaiʻi 50, 526 P.3d 575 (2023), indicates a need for the sex trafficking and promoting prostitution criminal offense statutes to be further clarified. Accordingly, the purpose of this Act is to clarify and update the sex trafficking and promoting prostitution criminal offense statutes by: (1) Clarifying the definition of "profits from prostitution"; (2) Restructuring provisions that define terms or establish exemptions for part I of chapter 712, Hawaii Revised Statutes, to enhance readability; and (3) Making technical amendments to update statutory references to part I of chapter 712, Hawaii Revised Statutes. SECTION 2. Section 350-1, Hawaii Revised Statutes, is amended by amending the definition of "child abuse or neglect" to read as follows: ""Child abuse or neglect" means: (1) The acts or omissions of any person who, or legal entity [which,] that, is in any manner or degree related to the child, is residing with the child, or is otherwise responsible for the child's care, that have resulted in the physical or psychological health or welfare of the child, who is under the age of eighteen, to be harmed, or to be subject to any reasonably foreseeable, substantial risk of being harmed. The acts or omissions are indicated for the purposes of reports by circumstances that include but are not limited to: (A) When the child exhibits evidence of: (i) Substantial or multiple skin bruising or any other internal bleeding; (ii) Any injury to skin causing substantial bleeding; (iii) Malnutrition; (iv) Failure to thrive; (v) Burn or burns; (vi) Poisoning; (vii) Fracture of any bone; (viii) Subdural hematoma; ix) Soft tissue swelling; (x) Extreme pain; (xi) Extreme mental distress; (xii) Gross degradation; or (xiii) Death; and [such] the injury is not justifiably explained, or when the history given concerning [such] the condition or death is at variance with the degree or type of [such] the condition or death, or circumstances indicate that [such] the condition or death may not be the product of an accidental occurrence; (B) When the child has been the victim of sexual contact or conduct, including but not limited to sexual assault as defined in the Penal Code, molestation, sexual fondling, incest, or prostitution; obscene or pornographic photographing, filming, or depiction; or other similar forms of sexual exploitation, including but not limited to acts that constitute an offense pursuant to section [712-1202(1)(b);] 712-1202(1)(c); (C) When there exists injury to the psychological capacity of a child as is evidenced by an observable and substantial impairment in the child's ability to function; (D) When the child is not provided in a timely manner with adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision; (E) When the child is provided with dangerous, harmful, or detrimental drugs as defined by section 712-1240; provided that this subparagraph shall not apply when such drugs are provided to the child pursuant to the direction or prescription of a practitioner, as defined in section 712-1240; or (F) When the child has been the victim of labor trafficking under chapter 707; or (2) The acts or omissions of any person that have resulted in sex trafficking or severe forms of trafficking in persons; provided that no finding by the department pursuant to this chapter shall be used as conclusive evidence that a person has committed an offense under part VIII of chapter 707 or section 712-1202." SECTION 3. Section 588-2, Hawaii Revised Statutes, is amended by amending the definition of "child sexual abuse" to read as follows: ""Child sexual abuse" means any of the offenses described under chapter 707, part V, when committed against a person under the age of eighteen years or that damage or injure a child's physical or psychological health or welfare, where the child has been the victim of sexual contact or conduct, including sexual assault; sodomy; molestation; sexual fondling; incest; prostitution; obscene or pornographic photographing, filming, or depiction; or other similar forms of sexual exploitation, including but not limited to acts that constitute an offense pursuant to section [712-1202(1)(b).] 712-1202(1)(c)." SECTION 4. Section 712-1200, Hawaii Revised Statutes, is amended to read as follows: "§712-1200 Prostitution. (1) A person commits the offense of prostitution if the person engages in, or agrees or offers to engage in, sexual conduct with another person in return for a fee or anything of value. [(2) As used in this section: "Minor" means a person who is less than eighteen years of age. "Sexual conduct" means "sexual penetration", "deviate sexual intercourse", or "sexual contact", as those terms are defined in section 707-700, or "sadomasochistic abuse" as defined in section 707-752. (3)] (2) Prostitution [is] shall be a petty misdemeanor; provided that if the person who commits the offense under subsection (1) is a minor, prostitution [is] shall be a violation. [(4)] (3) A person convicted of committing the offense of prostitution as a petty misdemeanor shall be sentenced as follows: (a) For the first offense, when the court has not deferred further proceedings pursuant to chapter 853, a fine of no less than $500 but no more than $1,000 and the person may be sentenced to a term of imprisonment of no more than thirty days or probation; provided that in the event the convicted person defaults in payment of the fine, and the default was not contumacious, the court may make an order converting the unpaid portion of the fine to community service as authorized by section 706‑605(1); (b) For any subsequent offense, a fine of no less than $500 but no more than $1,000 and a term of imprisonment of thirty days or probation, without possibility of deferral of further proceedings pursuant to chapter 853 and without possibility of suspension of sentence; and (c) For the purpose of this subsection, if the court has deferred further proceedings pursuant to chapter 853, [and] the defendant, notwithstanding any provision of chapter 853 to the contrary, [the defendant] shall not be eligible to apply for expungement pursuant to section 831-3.2 until three years following discharge. A plea previously entered by a defendant under section 853-1 for a violation of this section shall be considered a prior offense. [(5)] (4) This section shall not apply to any member of a police department, a sheriff, or a law enforcement officer acting in the course and scope of duties; provided that the member of a police department, sheriff, or law enforcement officer is engaging in undercover operations; provided further that under no circumstances shall sexual contact initiated by a member of a police department, sheriff, or law enforcement officer[;] or sexual penetration[;] or sadomasochistic abuse by a member of a police department, sheriff, or law enforcement officer be considered to fall within the course and scope of duties. [(6)] (5) A minor may be taken into custody by any police officer without order of the judge when there are reasonable grounds to believe that the minor has violated subsection (1). The minor shall be released, referred, or transported pursuant to section 571-31(b). The minor shall be subject to the jurisdiction of the family court pursuant to section 571-11(1), including for the purposes of custody, detention, diversion, and access to services and resources." SECTION 5. Section 712-1200.5, Hawaii Revised Statutes, is amended to read as follows: "[[]§712-1200.5[]] Commercial Sexual Exploitation. (1) A person commits the offense of commercial sexual exploitation if the person provides, agrees to provide, or offers to provide a fee or anything of value to another to engage in sexual conduct. [(2) As used in this section, "sexual conduct" has the same meaning as in section 712‑1200(2). (3)] (2) Except as provided in subsection [(4),] (3), commercial sexual exploitation [is] shall be a petty misdemeanor. [(4)] (3) Commercial sexual exploitation [is] shall be a class C felony if the person who commits the offense under subsection (1) does so in reckless disregard of the fact that the person exploited is a victim of sex trafficking. [(5)] (4) A person convicted of committing the offense of commercial sexual exploitation as a petty misdemeanor shall be sentenced as follows: (a) For the first offense, a fine of no less than $500 but no more than $1,000 and the person may be sentenced to a term of imprisonment of no more than thirty days or probation; provided that in the event the convicted person defaults in payment of the fine, and the default was not contumacious, the court may order conversion of the unpaid portion of the fine to community service as authorized by section 706-605(1); (b) For any subsequent offense, a fine of no less than $500 but no more than $1,000 and a term of imprisonment or probation of no more than thirty days, without possibility of suspension of sentence; and (c) For purposes of this subsection, the court may impose as a condition of probation that the defendant complete a course of exploitation intervention classes; provided that the court shall only impose the condition for one term of probation. [(6)] (5) This section shall not apply to any member of a police department, a sheriff, or a law enforcement officer acting in the course and scope of duties; provided that the member of a police department, sheriff, or law enforcement officer is engaging in undercover operations; provided further that under no circumstances shall sexual contact initiated by a member of a police department, sheriff, or law enforcement officer[;] or sexual penetration[;] or sadomasochistic abuse by a member of a police department, sheriff, or law enforcement officer be considered to fall within the course and scope of duties." SECTION 6. Section 712-1201, Hawaii Revised Statutes, is amended to read as follows: "§712-1201 [Advancing prostitution; profiting from prostitution; definition] Definitions of terms[.] in this part. In [sections 712-1202 and 712-1203: (1) A person "advances] this part, unless a different meaning is required or specified: "Advances prostitution" [if] means that the person knowingly causes or aids [a] another person to commit or engage in prostitution, procures or solicits patrons for prostitution, provides persons for prostitution purposes, permits premises to be regularly used for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution[;]. "Minor" means a person who is less than eighteen years of age. [(2) A person "profits] "Profits from prostitution" [if] means that the person knowingly accepts or receives money, anything of value, or other property pursuant to an agreement or understanding with [any person] a third party whereby the person participates or is to participate in the proceeds of prostitution activity[; and], regardless of whether the money, thing of value, or other property is accepted or received in excess of expenditures or as reimbursement or repayment of any debt. [(3) The definitions in subsections (1) and (2) shall not include those engaged in conduct outlined in section 712-1200 as the prostituted person or section 712-1200.5 as the person engaged in commercial sexual exploitation.] "Sexual conduct" means "sexual penetration", "deviate sexual intercourse", or "sexual contact", as those terms are defined in section 707-700, or "sadomasochistic abuse" as defined in section 707-752." SECTION 7. Section 712-1202, Hawaii Revised Statutes, is amended to read as follows: "§712-1202 Sex trafficking. (1) A person commits the offense of sex trafficking if the person knowingly: (a) Advances prostitution by compelling or inducing a person by force, threat, fraud, coercion, or intimidation to engage in prostitution [,or profits from such conduct by another]; or (b) Profits from prostitution that is the result of another person compelling or inducing a person by force, threat, fraud, coercion, or intimidation to engage in prostitution; or [(b)] (c) Advances prostitution or profits from prostitution of a minor. (2) Sex trafficking [is] shall be a class A felony. (3) [As used in] For the purposes of 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)] (1)(c) is not applicable to the fact that the victim was a minor. A person is strictly liable with respect to the attendant circumstances that the victim was a minor. (5) No person shall be convicted under this section if the conduct of the person underlying the offense consists exclusively of the person's own acts of: (a) Prostitution as a prostituted person as provided in section 712-1200; or (b) Commercial sexual exploitation as provided in section 712-1200.5." SECTION 8. Section 712-1203, Hawaii Revised Statutes, is amended to read as follows: "§712-1203 Promoting prostitution. (1) A person commits the offense of promoting prostitution if the person knowingly advances prostitution or profits from prostitution. (2) Promoting prostitution [is] shall be a class B felony. (3) No person shall be convicted under this section if the conduct of the person underlying the offense consists exclusively of the person's own acts of: (a) Prostitution as a prostituted person as provided in section 712-1200; or (b) Commercial sexual exploitation as provided in section 712-1200.5." SECTION 9. Section 712-1206, Hawaii Revised Statutes, is amended to read as follows: "[[]§712-1206[]] Loitering for the purpose of engaging in or advancing prostitution. (1) For the purposes of this section, "public place" means any street, sidewalk, bridge, alley or alleyway, plaza, park, driveway, parking lot or transportation facility or the doorways and entrance ways to any building [which] that fronts on any of the aforesaid places, or a motor vehicle in or on any such place. (2) Any person who remains or wanders about in a public place and repeatedly beckons to [or], repeatedly stops, [or] repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, [or] repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons for the purpose of committing the crime of prostitution as that term is defined in section 712-1200 shall be guilty of a violation. (3) Any person who remains or wanders about in a public place and repeatedly beckons to, [or] repeatedly stops, or repeatedly attempts to engage passers-by in conversation, [or] repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons for the purpose of [committing the crime of] advancing prostitution [as that term is defined in section 712-1201(1) is] shall be guilty of a petty misdemeanor." SECTION 10. Section 712-1207, Hawaii Revised Statutes, is amended by amending subsection (8) to read as follows: "(8) For purposes of this section: "Area" means any zone within a county that is defined with specific boundaries and designated as a zone of significant prostitution by this section or a county ordinance. "Public property" includes any street, highway, road, sidewalk, alley, lane, bridge, parking lot, park, or other property owned or under the jurisdiction of any governmental entity or otherwise open to the public. ["Sexual conduct" has the same meaning as in section 712-1200(2).] "Waikiki" means that area of Oahu bounded by the Ala Wai canal, the ocean, and Kapahulu avenue. " SECTION 11. Section 712-1209, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows: "(3) For purposes of this section: "School" has the same meaning as in section 712-1249.6(6). ["Sexual conduct" has the same meaning as in section 712-1200(2).]" SECTION 12. Section 712-1209.1, Hawaii Revised Statutes, is amended to read as follows: "§712-1209.1 Commercial Sexual Exploitation of a Minor. (1) A person eighteen years of age or older commits the offense of commercial sexual exploitation of a minor if the person intentionally, knowingly, or recklessly: (a) Offers or agrees to provide anything of value to a member of a police department, a sheriff, or a law enforcement officer who represents that person's self as a minor to engage in sexual conduct; (b) Provides anything of value to a minor or third person as compensation for having engaged in sexual conduct with a minor; (c) Agrees to provide or offers to provide anything of value to a minor or third person for the purpose of engaging in sexual conduct with a minor; or (d) Solicits, offers to engage in, or requests to engage in sexual conduct with a minor in return for anything of value. (2) Commercial sexual exploitation of a minor [is] shall be a class B felony. (3) In addition to any other authorized disposition, a person convicted of committing the offense of commercial sexual exploitation of a minor shall be sentenced to pay a fine of [no] not less than $5,000. (4) This section shall not apply to any member of a police department, a sheriff, or a law enforcement officer acting in the course and scope of duties; provided that the member of a police department, sheriff, or law enforcement officer is engaging in undercover operations; provided further that under no circumstances shall sexual contact initiated by a member of a police department, sheriff, or law enforcement officer[;] or sexual penetration[;] or sadomasochistic abuse by a member of a police department, sheriff, or law enforcement officer be considered to fall within the course and scope of duties. (5) The state of mind requirement for the offense under subsection (1)(b) is not applicable to the fact that the victim was a minor. A person is strictly liable with respect to the attendant circumstance that the victim was a minor; provided that the person had a reasonable opportunity to observe the victim. (6) Consent of a minor to the sexual conduct does not constitute a defense to any offense in this section. [(7) For purposes of this section: "Minor" means a person who is less than eighteen years of age. "Sexual conduct" has the same meaning as in section 712‑1200(2).]" SECTION 13. Section 846E-1, Hawaii Revised Statutes, is amended by amending the definition of "sexual offense" to read as follows: ""Sexual offense" means an offense that is: (1) Set forth in section 707-730(1), 707-731(1), 707‑732(1), 707-733(1)(a), 707-733.6, [712-1200.5(4),] 712-1200.5(3), 712-1202(1), or 712-1203(1), but excludes conduct that is criminal only because of the age of the victim, as provided in section 707‑730(1)(b), or section 707-732(1)(b) if the perpetrator is under the age of eighteen; (2) An act defined in section 707-720 if the charging document for the offense for which there has been a conviction alleged intent to subject the victim to a sexual offense; (3) An act that consists of: (A) Criminal sexual conduct toward a minor, including but not limited to an offense set forth in section 707-759; (B) Solicitation of a minor who is less than fourteen years old to engage in sexual conduct; (C) Use of a minor in a sexual performance; (D) Production, distribution, or possession of child pornography chargeable as a felony under section 707-750, 707-751, or 707-752; (E) Electronic enticement of a child chargeable under section 707-756 or 707-757 if the offense was committed with the intent to promote or facilitate the commission of another covered offense as defined in this section; or (F) Commercial sexual exploitation of a minor in violation of section 712-1209.1; (4) A violation of privacy under section 711-1110.9; (5) An act, as described in chapter 705, that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the offenses designated in paragraphs (1) through (4); (6) A criminal offense that is comparable to or that exceeds a sexual offense as defined in paragraphs (1) through (5); or (7) Any federal, military, out-of-state, tribal, or foreign conviction for any offense that under the laws of this State would be a sexual offense as defined in paragraphs (1) through (6)." SECTION 14. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 15. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 16. This Act shall take effect on July 1, 2025. |
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