Bill Text: HI HB497 | 2011 | Regular Session | Introduced

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Bill Title: Sex Trafficking Offenses; Crime

Spectrum: Strong Partisan Bill (Democrat 16-1)

Status: (Introduced - Dead) 2011-02-17 - (H) Passed Second Reading and referred to the committee(s) on JUD with none voting no (0) and Chong, Nakashima excused (2). [HB497 Detail]

Download: Hawaii-2011-HB497-Introduced.html

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HOUSE OF REPRESENTATIVES	H.B. NO.	497
TWENTY-SIXTH LEGISLATURE, 2011
STATE OF HAWAII

A BILL FOR AN ACT

 

 

RELATING TO SEXUAL OFFENSES.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  Chapter 707, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part   .  sex trafficking

     §707-A  Definitions.  As used in this part, unless the context otherwise requires:

     "Coercion" means the use or threat to use any form of domination, restraint, or control, including:

    (a)   Causing bodily injury in the future to the person threatened or to any other person;

    (b)   Subjecting the person or any other person to physical confinement or restraint;

    (c)   Committing a penal offense;

    (d)   Accusing some person of any offense or causing a penal charge to be instituted against some person;

    (e)   Testifying or providing information or withholding testimony or information with respect to another's legal claim or defense;

    (f)   Taking or withholding action as a public servant, or causing a public servant to take or withhold such action;

    (g)   Destroying, concealing, removing, confiscating, or possessing any actual or purported passport, or any other actual or purported government identification document, or other immigration document, of another person; or

     (h)  Facilitating or controlling another person's access to a controlled substance.

     "Force" means the use of any form of "bodily injury" or "restraint" as those terms are defined in section 707-700.

     "Fraud" means the intentional misrepresentation of facts to induce another person to act.

     "Sexual conduct" means "sexual penetration," "deviate sexual intercourse," or "sexual contact" as those terms are defined in section 707-700.

     "Sexually explicit activity" includes:

     (a)  Performances by erotic or nude massagers or exotic or nude dancers as defined in section 712-1210; and

     (b)  Activities relating to the production of child pornography as defined in section 707-750.

     §707-B  Sex trafficking in the first degree.  (1)  A person commits the offense of sex trafficking in the first degree if:

    (a)   The person knowingly advances or profits from the sexual conduct or sexually explicit activity of a person who is less than eighteen years of age that occurs through force, fraud, or coercion; or

    (b)   The person knowingly entices, recruits, harbors, provides, or transports a person who is less than eighteen years of age to be used or employed for sexual conduct or sexually explicit activity through force, fraud, or coercion.

     (2)  Sex trafficking in the first degree is a class A felony.

     §707-C  Sex trafficking in the second degree.  (1)  A person commits the offense of sex trafficking in the second degree if:

    (a)   The person knowingly advances or profits from the sexual conduct or sexually explicit activity of a person who is eighteen years of age or older that occurs through force, fraud, or coercion; or

    (b)   The person knowingly entices, recruits, harbors, provides, or transports a person who is eighteen years of age or older to be used or employed for sexual conduct or sexually explicit activity through force, fraud, or coercion.

   (2)   Sex trafficking in the second degree is a class B felony."

     SECTION 2.  Section 28-94, Hawaii Revised Statutes, is amended by amending the definition of "abuse" to read as follows:

     ""Abuse" means actual or imminent physical injury, psychological abuse or neglect, sexual abuse, financial exploitation, negligent treatment, or maltreatment.

     Abuse occurs where:

     (1)  Any dependent elder exhibits evidence of:

         (A)  Substantial or multiple skin bruising or any other internal bleeding;

         (B)  Any injury to skin causing substantial bleeding;

         (C)  Malnutrition;

         (D)  A burn or burns;

         (E)  Poisoning;

         (F)  The fracture of any bone;

          (G)  A subdural hematoma;

         (H)  Soft tissue swelling;

         (I)  Extreme physical pain; or

         (J)  Extreme mental distress which includes a consistent pattern of actions or verbalizations, including threats, insults, or harassment, that humiliates, provokes, intimidates, confuses, and frightens the dependent elder;

          and the injury is not justifiably explained, or where the history given is at variance with the degree or type of injury, or circumstances indicate that the injury is not the product of an accidental occurrence;

     (2)  Any dependent elder has been the victim of nonconsensual sexual contact or conduct by a caregiver, including [but not limited to]:

         (A)  Sexual assault, molestation, sexual fondling, incest, [prostitution] sex trafficking;

         (B)  Obscene or pornographic photographing, filming, or depiction; or

         (C)  Other similar forms of sexual exploitation;

     (3)  Any dependent elder is provided with dangerous, harmful, or detrimental drugs as defined by section 712-1240; however, this paragraph shall not apply when such drugs are provided to the dependent elder pursuant to the direction or prescription of a practitioner, as defined in section 712-1240;

     (4)  Any dependent elder is subject to neglect;

     (5)  Any dependent elder appears to lack sufficient understanding or capacity to make or communicate responsible decisions concerning the dependent elder's person, and appears to be exposed to a situation or condition which poses an imminent risk of death or risk of serious physical harm; or

     (6)  There is financial and economic exploitation."

     SECTION 3.  Section 28-101, Hawaii Revised Statutes, is

amended by amending subsection (a) to read as follows:

     "(a)  The attorney general shall establish a statewide witness program through which the attorney general may fund or provide for the security and protection of a government witness or a potential government witness in an official proceeding or investigation where the attorney general determines that an offense such as those described in [sections] section 710-1071 (intimidating a witness), 710-1072 (tampering with a witness), or 710-1072.2 (retaliating against a witness) is likely to be committed or which involves great public interest.  The attorney general may also fund or provide for the security and protection of the immediate family of, or a person otherwise closely associated with, such witness or potential witness if the family or person may also be endangered.  In determining whether such security and protection or funds are to be provided, the attorney general shall give greatest priority to official proceedings or investigations involving pending or potential organized crime, racketeering activity, sex trafficking, or career criminal prosecutions."

     SECTION 4.  Section 587A-4, Hawaii Revised Statutes, is amended by amending the definition of "harm" to read as follows:

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

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

          (A)  Substantial or multiple skin bruising;

          (B)  Substantial external or internal bleeding;

          (C)  Burn or burns;

          (D)  Malnutrition;

          (E)  Failure to thrive;

          (F)  Soft tissue swelling;

          (G)  Extreme pain;

          (H)  Extreme mental distress;

          (I)  Gross degradation;

          (J)  Poisoning;

          (K)  Fracture of any bone;

          (L)  Subdural hematoma; or

          (M)  Death;

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

     (2)  The child has been the victim of sexual contact or conduct, including sexual assault; sodomy; molestation; sexual fondling; incest; [prostitution;] sex trafficking; obscene or pornographic photographing, filming, or depiction; or other similar forms of sexual exploitation;

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

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

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

     SECTION 5.  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 for a fee.

     (2)  As used in subsection (1), "sexual conduct" means "sexual penetration," "deviate sexual intercourse," or "sexual contact," as those terms are defined in section 707-700.

     (3)  Prostitution is a petty misdemeanor.

     (4)  In any prosecution for prostitution, it is an affirmative defense that the defendant engaged in sexual conduct through force, fraud, or coercion.  

     (5)  This section shall not apply to any member of a police department, a sheriff, or other law enforcement officer acting in the course and scope of duty.

     [(4)] (6)  A person convicted of committing the offense of prostitution shall be sentenced as follows:

     (a)  For the first offense, when the court has not deferred further proceedings pursuant to chapter 853, a mandatory fine of $500 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 $500 fine, and the default was not contumacious, the court may sentence the person to perform services for the community as authorized by section 706-605(1)[.];

     (b)  For any subsequent offense, a mandatory fine of $500 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 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 four 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 such 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.]

     (7)  For purposes of this section, "coercion" has the same meaning as in section 707-    ."

     SECTION 6.  Section 712-1201, Hawaii Revised Statutes, is amended to read as follows:

     "§712-1201  Promoting prostitution; definition of terms.  In sections 712-1202, 712-1203, and 712-1204:

(1)  A person "advances prostitution" if, acting other than as a prostitute or a patron of a prostitute, [he] 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[.]; and

(2)  A person "profits from prostitution" if, acting other than as a prostitute receiving compensation for personally-rendered prostitution services, [he] the person accepts or receives money or other property pursuant to an agreement or understanding with any other person whereby [he] the person participates or is to participate in the proceeds of prostitution activity."

     SECTION 7.  Section 712-1202, Hawaii Revised Statutes, is amended to read as follows:

     "§712-1202  Promoting prostitution in the first degree.  (1)  A person commits the offense of promoting prostitution in the first degree if the person knowingly[:

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

    (b)   Advances] advances or profits from prostitution of a person less than eighteen years old.

     (2)  Promoting prostitution in the first degree is a class B felony.

     [(3)  As used in this section, "threat" means any of the actions listed in section 707-764(1).]"

     SECTION 8.  Section 712-1203, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

     "(1)  A person commits the offense of promoting prostitution in the second degree if the person knowingly advances or profits from prostitution by managing, supervising, controlling, or owning, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving prostitution activity by two or more [prostituted] persons."

     SECTION 9.  Section 712-1206, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

     "(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] offense of prostitution as that term is defined in section 712-1200, shall be guilty of a violation."

     SECTION 10.  Section 712-1207, Hawaii Revised Statutes, is amended as follows:

     1.  By amending subsections (1) and (2) to read:

     "(1)  It shall be unlawful for any person within the boundaries of Waikiki, and while on any public property, to offer or agree to engage in [sexual conduct with another person in return for a fee] prostitution.

     (2)  It shall be unlawful for any person within the boundaries of other areas in this [State] state designated by county ordinance pursuant to subsection (3), and while on any public property, to offer or agree to engage in [sexual conduct with another person in return for a fee] prostitution."

     2.  By amending subsection (8) to read:

     "(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).]

     "Prostitution" has the same meaning as in section 712-1200.

     "Waikiki" means that area of Oahu bounded by the Ala Wai canal, the ocean, and Kapahulu avenue."

     SECTION 11.  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)(a), 707-730(1)(b), 707-730(1)(c), 707-730(1)(d) or (e), 707-731(1)(a), 707-731(1)(b), 707-731(1)(c), 707-732(1)(a), 707-732(1)(b), 707-732(1)(c), 707-732(1)(d), 707-732(1)(e), 707-732(1)(f), 707-733(1)(a), 707-733.6, 712-1202[(1)(b)], 707-    , or 712-1203(1)(b), 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 to practice prostitution;

     (4)  A criminal offense that is comparable to or that exceeds a sexual offense as defined in paragraphs (1) through (3) or any federal, military, or out-of-state conviction for any offense that under the laws of this [State] state would be a sexual offense as defined in paragraphs (1) through (3); or

(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)."

     SECTION 12.  Section 846E-10, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

     "(c)  Tier 2 offenses.  A covered offender who has maintained a clean record for the previous twenty-five years, excluding any time the offender was in custody or civilly committed, and who has substantially complied with the registration requirements of this chapter for the previous twenty-five years, or for the portion of that twenty-five years that this chapter has been applicable, and who is not a repeat covered offender may petition the court, in a civil proceeding, for termination of registration requirements; provided that the covered offender's most serious covered offense is one of the following:

     (1)  Any offense set forth in section 707-730(1)(c), 707-731(1)(c), 707-732(1)(c), 707-750, 707-751, 712-1202[(1)(b)], 707-    , or 712-1203(1)(b);

     (2)  An offense set forth in section 707-720; provided that 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 offense set forth in section 707-756 that includes an intent to promote or facilitate the commission of another felony covered offense as defined in section 846E-1;

     (4)  An offense that is an attempt, criminal solicitation, or criminal conspiracy to commit any of the offenses in paragraph (1), (2), or (3);

     (5)  Any criminal offense that is comparable to one of the offenses in paragraph (1), (2), (3), or (4); or

     (6)  Any federal, military, or out-of-state offense that is comparable to one of the offenses in paragraph (1), (2), (3), or (4)."

     SECTION 13.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 14.  If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 15.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 16.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

Report Title:

Sex Trafficking Offenses; Crime

 

Description:

Establishes class A and class B felony sex trafficking offenses.  Includes sex trafficking offenses in the official proceedings or investigations that are to be given greatest priority for purposes of witness protection programs.

 

 

 

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