Bill Text: HI SB2322 | 2016 | Regular Session | Introduced
Bill Title: Sex Trafficking
Spectrum: Partisan Bill (Democrat 11-0)
Status: (Introduced - Dead) 2016-01-25 - Referred to JDL. [SB2322 Detail]
Download: Hawaii-2016-SB2322-Introduced.html
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THE SENATE |
S.B. NO. |
2322 |
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TWENTY-EIGHTH LEGISLATURE, 2016 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO SEX TRAFFICKING.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. 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
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] the witness or potential
witness if the family or person may also be endangered. In determining whether
the funds or security and protection are to be provided, the attorney general
shall give greatest priority to official proceedings or investigations
involving pending or potential organized crime, racketeering activity,
promoting prostitution, sex trafficking, or career criminal
prosecutions."
SECTION 2. Section 351-32, Hawaii Revised Statutes, is amended to read as follows:
"§351-32 Violent crimes. The crimes to which part III of this chapter applies are the following and no other:
(1) Murder in the first degree (section 707-701);
(2) Murder in the second degree (section 707-701.5);
(3) Manslaughter (section 707-702);
(4) Negligent homicide in the first degree (section 707-702.5);
(5) Negligent homicide in the second degree (section 707-703);
(6) Negligent injury in the first degree (section 707-705);
(7) Negligent injury in the second degree (section 707-706);
(8) Assault in the first degree (section 707-710);
(9) Assault in the second degree (section 707-711);
(10) Assault in the third degree (section 707-712);
(11) Kidnapping (section 707-720);
(12) Sexual assault in the first degree (section 707-730);
(13) Sexual assault in the second degree (section 707-731);
(14) Sexual assault in the third degree (section 707-732);
(15) Sexual assault in the fourth degree (section 707-733);
(16) Abuse of family [[]or[]] household
member (section 709-906); [and]
(17) Sex trafficking (section 712-1202); and
(18) Terrorism, as defined in title 18 United States Code section 2331."
SECTION 3. Section 663J-1, Hawaii Revised Statutes, is amended to read as follows:
"[[]§663J-1[]]
Title. This [[]chapter[]] may be cited as the Sex
Trafficking and Prostitution Coercion Liability Act."
SECTION 4. Section 663J-2, Hawaii Revised Statutes, is amended to read as follows:
"[[]§663J-2[]]
Definitions. As used in this chapter:
"Coerce" means to use or threaten to use any form of domination, restraint, or control for the purpose of causing an individual to engage in or remain in prostitution or to relinquish earnings derived from prostitution. Coercion exists if the totality of the circumstances establish the existence of domination, restraint, or control that would have the reasonably foreseeable effect of causing an individual to engage in or remain in prostitution or to relinquish earnings derived from prostitution.
"Promoting prostitution" means
promoting prostitution [in the first or second degree,] as provided in [sections
712-1202 and] section 712-1203[, respectively].
"Prostitution" has the same meaning as provided in section 712-1200.
"Sex trafficking" has the same meaning as provided in section 712-1202."
SECTION 5. Section 663J-3, Hawaii Revised Statutes, is amended to read as follows:
"[[]§663J-3[]]
Cause of action for coercion into prostitution[.]; sex
trafficking. An individual has a cause of action against a person who:
(1) Coerced the individual into prostitution[;]
or to remain in prostitution, or subjected the individual to sex
trafficking;
(2) [Coerced the individual to remain in
prostitution;
(3)] Used coercion to collect or receive any of
the individual's earnings derived from prostitution[;] or from being
the subject of sex trafficking; or
[(4)] (3) Hired, or attempted to hire
the individual to engage in prostitution, when a reasonable person would
believe that the individual was coerced into prostitution by another person[.]
or was being subjected to sex trafficking.
[Paragraph (3) shall not apply to minor
children who are dependent on the individual and who may have benefited from or
been supported by the individual's earnings derived from prostitution.]"
SECTION 6. Section 663J-5, Hawaii Revised Statutes, is amended to read as follows:
"[[]§663J-5[]]
Damages. [A person] An individual entitled to bring an
action under section 663J-3 may recover all of the following damages:
(1) Economic damages proximately caused by coercion
into prostitution[;] or being the subject of sex trafficking;
(2) Noneconomic damages proximately caused by
coercion into prostitution[;] or being the subject of sex
trafficking;
(3) Exemplary damages;
(4) Reasonable attorney's fees; and
(5) Costs of suit, including reasonable expenses for expert testimony."
SECTION 7. Section 663J-6, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) In the discretion of the court, two
or more [persons] individuals may join in one action under this
chapter as plaintiffs if their respective actions involve [an individual]
a person who engages in promoting prostitution by coercion[.] or
subjecting the individuals to sex trafficking."
SECTION 8. Section 663J-7, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) A claim under this chapter may not be brought against a person more than six years after an act of promoting prostitution by coercion or sex trafficking by that person."
SECTION 9. Section 663J-8, Hawaii Revised Statutes, is amended to read as follows:
"[[]§663J-8[]]
Stay of action. On motion by a governmental agency involved in an
investigation or prosecution for promoting prostitution[,] or sex
trafficking, an action brought under this chapter shall be stayed until the
completion of the criminal investigation or prosecution that gave rise to the
motion for a stay of the action."
SECTION 10. Section 663J-9, Hawaii Revised Statutes, is amended to read as follows:
"[[]§663J-9[]]
Other remedies preserved. The remedies provided under this chapter do not
restrict the right of any [person] individual to bring an action
under other law, including common law, to recover damages arising out of the
use of the individual in prostitution, or subjecting the individual to sex trafficking,
or the coercion incident to the individual being used in prostitution[;]
or sex trafficking; nor does this chapter limit or restrict the
liability of any person under other law."
SECTION 11. Chapter 712, Hawaii Revised Statutes, is amended by amending the title of part I to read as follows:
"PART
I. PROSTITUTION [AND], PROMOTING PROSTITUTION, AND SEX
TRAFFICKING"
SECTION 12. 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]:
(a) [Engages] The person is eighteen years
of age or older, and engages in, or agrees or offers to engage in, sexual
conduct with another person for a fee; or
(b) [Pays,] The person pays, agrees to
pay, or offers to pay a fee to another to engage in sexual conduct.
(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, or "sadomasochistic abuse" as defined in section 707-752.
(3) Prostitution is a petty misdemeanor.
(4) 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 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 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 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] 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, unless engaged in sexual penetration or sadomasochistic abuse.
(6) A person less than eighteen years of age who engages in, or agrees or offers to engage in, sexual conduct with another person for a fee shall have committed a violation. The person shall be subject to the jurisdiction of the family court that shall handle the matter as a criminal offense pursuant to section 571-11(1), including for the purposes of custody, detention, diversion, and access to services and resources."
SECTION 13. Section 712-1201, Hawaii Revised Statutes, is amended by amending its title to read as follows:
"§712-1201 [Promoting
prostitution;] Advancing prostitution; profiting from
prostitution; definition of terms."
SECTION 14. Section 712-1202, Hawaii Revised Statutes, is amended to read as follows:
"§712-1202 [Promoting
prostitution in the first degree.] Sex trafficking. (1)
A person commits the offense of [promoting prostitution in the first degree]
sex trafficking if the person knowingly:
(a) Advances prostitution by compelling or inducing a person by force, threat, fraud, or intimidation to engage in prostitution, or profits from such conduct by another; or
(b) Advances or profits from prostitution of a
person less than eighteen years old[.]; provided that the state of
mind requirement for the offense under this paragraph is not applicable to the
fact that the person subjected to prostitution was less than eighteen years
old. A person is strictly liable with respect to the attendant circumstance
that the person subjected to prostitution was less than eighteen years old.
(2) [Promoting prostitution in the first
degree] Sex trafficking is a class A felony.
(3) As used in this section:
"Fraud" means making material false statements, misstatements, or omissions.
"Threat" means any of the actions listed in section 707-764(1)."
SECTION 15. Section 712-1203, Hawaii Revised Statutes, is amended to read as follows:
"§712-1203 Promoting
prostitution [in the second degree]. (1) A person
commits the offense of promoting prostitution [in the second degree] if
the person knowingly advances or profits from prostitution.
(2) Promoting prostitution [in the second
degree] is a class B felony."
SECTION 16. Section 712-1209.6, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (1) to read:
"(1) A person convicted of committing the offense of prostitution under section 712-1200, loitering for the purpose of engaging in or advancing prostitution under section 712-1206, street solicitation of prostitution in designated areas under section 712-1207, or convicted of a lesser offense when originally charged with a violation of section 712-1200, 712-1206, or 712-1207, may file a motion to vacate the conviction if the defendant's participation in the offense was the result of the person having been a victim of:
(a) [Promoting prostitution in the first degree]
Sex trafficking under section 712-1202[; or] or promoting
prostitution under section 712-1203; or
(b) A severe form of trafficking in persons as defined in title 22 United States Code section 7102(9)(A)."
2. By amending subsections (6) and (7) to read:
"(6) This section shall not apply to a motion to vacate a conviction under this chapter for:
(a) Sex trafficking under section 712-1202;
[(a)](b) Promoting prostitution under
section [712-1202 or] 712-1203; or
[(b)](c) A person who pays, agrees to
pay or offers a fee to another person to engage in sexual conduct.
(7) For the purposes of this section:
"Victim [of trafficking" and
"victim] of a severe form of trafficking" shall have the same
meaning as in title 22 United States Code section 7102.
"Victim of trafficking" shall mean a victim of trafficking as defined in title 22 United States Code section 7102, a victim of sex trafficking under section 712-1202, or a victim of promoting prostitution under section 712-1203, as applicable."
SECTION 17. 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, 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, habitual solicitation of prostitution, 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 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 18. Section 803-44, Hawaii Revised Statutes, is amended to read as follows:
"§803-44 Application for court order
to intercept wire, oral, or electronic communications. The attorney
general of this State, or a designated deputy attorney general in the attorney
general's absence or incapacity, or the prosecuting attorney of each county, or
a designated deputy prosecuting attorney in the prosecuting attorney's absence
or incapacity, may make application to a designated judge or any other circuit
court judge or district court judge, if a circuit court judge has not been
designated by the chief justice of the Hawaii supreme court, or is otherwise
unavailable, in the county where the interception is to take place, for an
order authorizing or approving the interception of wire, oral, or electronic
communications, and [such] the court may grant in conformity with
section 803-46 an order authorizing or approving the interception of wire,
oral, or electronic communications by investigative or law enforcement officers
having responsibility for the investigation of the offense as to which the
application is made, if the interception might provide or has provided evidence
of:
(1) Murder;
(2) Kidnapping;
(3) Labor trafficking in the first degree;
(4) Labor trafficking in the second degree;
(5) Felony criminal property damage involving the danger of bodily injury as defined in section 707-700;
(6) Distribution of dangerous, harmful, or detrimental drugs;
(7) Conspiracy to commit one or more of the above; or
(8) Involvement of organized crime and any of the following felony offenses:
(A) Extortion;
(B) Bribery of a juror, witness, or police officer;
(C) Receiving stolen property;
(D) Gambling; [and]
(E) Money laundering[.]; and
(F) Sex trafficking."
SECTION 19. Section 846E-10, Hawaii Revised Statutes, is amended by amending subsections (c) and (d) 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),] 712-1202,
or 712-1203(1)(b), as section 712-1203(1)(b) read prior to its amendment
pursuant to section 9 of Act 147, Session Laws of Hawaii 2008;
(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, out-of-state, tribal, or foreign offense that is comparable to one of the offenses in paragraph (1), (2), (3), or (4).
(d) Tier 1 offenses. A covered offender who has maintained a clean record for the previous ten 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 ten years, or for the portion of that ten 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 707-732(1)(d) or
(e), 707-733(1)(a), 707-752, 707-759, 711-1110.9, [712-1202(1)(a),]
712-1203(1), or 712-1209.1;
(2) An offense set forth in section 707-721 or 707-722; provided that the offense involves unlawful imprisonment of a minor by someone other than a parent;
(3) An offense set forth in section 707-757 that includes an intent to promote or facilitate the commission of another 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);
(6) Any federal, military, out-of-state, tribal, or foreign offense that is comparable to one of the offenses in paragraph (1), (2), (3), or (4); or
(7) Any other covered offense that is not specified in subsection (a) or (c) or paragraph (1), (2), (3), (4), (5), or (6)."
SECTION 20. 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;
(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 status 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 status 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 [in the second
degree];
(N) Abuse of family or household member;
(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 pursuant to section 712-1200(1)(b);
(W) Street solicitation of prostitution under section 712-1207(1)(b);
(X) Solicitation of prostitution near schools or public parks under section 712-1209;
(Y) Habitual solicitation of prostitution under section 712-1209.5; or
(Z) Solicitation of a minor for prostitution 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 21. This Act does not affect the rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 22. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 23. This Act shall take effect upon its approval.
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INTRODUCED BY: |
_____________________________ |
Report Title:
Sex Trafficking
Description:
Replaces the offense of Promoting Prostitution in the First Degree with Sex Trafficking to be classified as a violent crime. Makes Sex Trafficking a class A felony and a strict liability offense if a minor is the victim of sex trafficking. Provides that the offense of prostitution for a person younger than eighteen years of age is a violation. Expands the Department of the Attorney General's Statewide Witness Program to include sex trafficking; provides victims with access to criminal injury compensation; and amends laws relating to civil liability for cases of coercion into prostitution. Makes amendments to strengthen enforcement of laws and increase penalties against the sex trafficker.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
