Hawaii-2024-SB2757-Amended

SECTION 1. The legislature finds that sex trafficking is a form of modern-day slavery. According to a 2018 report published by Arizona State University and the Hawaii state commission on the status of women, one out of every eleven adult male residents of Hawaii are online sex shoppers. The report also estimated that there were 74,362 potential sex buyers in Hawaii. Moreover, Imua Alliance, a victim service provider for survivors of sex trafficking and sexual violence, estimates that one hundred fifty establishments participate in the commercial sex trade in the State, increasing the high risk for sex trafficking. During the coronavirus disease 2019 pandemic, a service provider for sex trafficking victims in Hawaii reported seeing a three hundred per cent increase in demand for services.

The legislature further finds that Native Hawaiians and Pacific Islanders are disproportionately overrepresented in the State's sex trafficking survivor population. In a survey conducted by the Hawaii state commission on the status of women and Arizona State University, sixty-four per cent of individuals identified as victims of sexual exploitation possessed at least partial Native Hawaiian ancestry. According to the report, "[t]he overutilization of Native Hawaiians to meet sex buyer demand may be directly linked to structural economic coercion and vulnerabilities connected to land dispossession, exposure to sexual violence, hyper sexualization, incarceration, cultural dislocation, intergenerational trauma, mental and emotional distress, racism, poverty, and going inequities".

The legislature additionally finds that state law does not currently identify soliciting a minor for prostitution as a form of sex trafficking. However, under title 18 United States Code section 1591, federal law recognizes offering to engage in sexual activity with a minor for anything of value as a form of sex trafficking. Laws that target the solicitation of minors for sex trafficking have been proven to be effective in reducing the demand for sexual exploitation that provides the financial incentive for the commercial sex trade, without relying on criminal systems that often misidentify, retraumatize, penalize, stigmatize, or incarcerate sex trafficking victims.

The purpose of this Act is to align Hawaii's sex trafficking laws with federal law by making the commercial sexual exploitation of a minor a form of sex trafficking.

SECTION 2. Section 706-606.6, Hawaii Revised Statutes, is amended to read as follows:

"§706-606.6 Repeat violent and sexual offender; enhanced sentence. (1) Notwithstanding any other provision of law to the contrary, any person who is convicted of an offense under section 707-701.5, 707-702, 707-730, 707-731, 707-732, 707‑733.6, 707-750, 708-840, 712-1202, or 712-1203, [~~or 712‑1209.1,~~] after having been convicted on at least three prior and separate occasions of an offense under section 707-701.5, 707-702, 707-710, 707-711, 707‑730, 707-731, 707-732, 707-733.6, 707-750, 708-840, 712-1202, or 712-1203, [~~or 712-1209.1,~~] or of an offense under federal law or the laws of another state that is comparable to an offense under section 707-701.5, 707-702, 707-710, 707-711, 707-730, 707-731, 707-732, 707-733.6, 707-750, 708-840, 712-1202, or 712-1203, [~~or 712-1209.1,~~] shall be sentenced to an extended term of imprisonment as provided in section 706-661.

(2) A conviction shall not be considered a prior offense unless the conviction occurred within the following time periods:

(a) For an offense under section 707-701.5, 707-702, 707‑730, 707-733.6, 707-750, 708-840, 712-1202, or 712-1203, [~~or 712-1209.1,~~] within the past twenty years from the date of the instant offense;

(b) For an offense under section 707-710 or 707-731, within the past ten years from the date of the instant offense;

(d) For an offense under federal law or the laws of another state that is comparable to an offense under section 707-701.5, 707-702, 707-710, 707-711, 707-730, 707-731, 707-732, 707-733.6, 707-750, 708-840, 712‑1202, or 712-1203, [~~or 712-1209.1,~~] within the maximum term of imprisonment possible under the appropriate jurisdiction."

SECTION 3. 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~~] Intentionally, knowingly, or recklessly 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) [~~Advances~~] Intentionally, knowingly, or recklessly advances prostitution or profits from prostitution of a minor[.]; or

(i) Offers or agrees to provide anything of value to a member of a police department, deputy sheriff, or other law enforcement officer who represents that person's self as a minor to engage in sexual conduct;

(ii) Provides anything of value to a minor or third person as compensation for having engaged in sexual conduct with a minor;

(iii) 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

(iv) Solicits, offers to engage in, or requests to engage in sexual conduct with a minor in return for anything of value.

(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.

"Sexual conduct" has the same meaning as in section 712‑1200(2).

"Threat" means any of the actions listed in section 707‑764(1).

(4) The state of mind requirement for the offense under [~~subsection~~] subsections (1)(b) and (1)(c)(ii) 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) Consent to sexual conduct shall not constitute a defense to an offense under this section.

(6) Subsection (1)(c) shall not apply to any member of a police department, a sheriff's deputy, or a law enforcement officer acting in the course and scope of duties; provided that the member of a police department, sheriff's deputy, 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's deputy, or law enforcement officer; sexual penetration; or sadomasochistic abuse be considered to fall within the course and scope of duties."

SECTION 4. 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), 712-1202(1), or 712-1203(1), but excludes conduct that is criminal only because of the age of the victim, as provided in section 707-730(1)(b), or section 707‑732(1)(b) if the perpetrator is under the age of eighteen;

(2) An act defined in section 707-720 if the charging document for the offense for which there has been a conviction alleged intent to subject the victim to a sexual offense;

(3) An act that consists of:

(A) Criminal sexual conduct toward a minor, including but not limited to an offense set forth in section 707-759;

(B) Solicitation of a minor who is less than fourteen years old to engage in sexual conduct;

(D) Production, distribution, or possession of child pornography chargeable as a felony under section 707-750, 707-751, or 707-752; or

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

"(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), (e), or (f); 707-733(1)(a); 707-752; 707-759; 711-1110.9; or 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 6. 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;

(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) Commercial sexual exploitation pursuant to section 712-1200.5;

(W) Street prostitution and commercial sexual exploitation under section 712‑1207(1)(b) or (2)(b);

(X) Commercial sexual exploitation near schools or public parks under section 712-1209;

[~~(Y)~~ ~~Commercial sexual exploitation of a minor under section 712‑1209.1;~~

~~(Z)~~](Y) Habitual commercial sexual exploitation under section 712‑1209.5;

[~~(AA)~~](Z) Violation of privacy in the first degree under section 711-1110.9;

[~~(BB)~~](AA) Violation of privacy in the second degree under section 711-1111(1)(d), (e), (f), (g), or (h);

[~~(CC)~~](BB) Habitually operating a vehicle under the influence of an intoxicant under section 291E-61.5(a);

[~~(DD)~~](CC) Promoting gambling in the first degree; or

[~~(EE)~~](DD) Promoting gambling in the second degree;

(14) The defendant has been charged with:

(A) Knowingly or intentionally falsifying any report required under part XIII of chapter 11, 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 7. Section 712-1209.1, Hawaii Revised Statutes, is repealed.

["~~§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 minorif 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 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; sexual penetration; or sadomasochistic abuse 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 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 9. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 11. This Act shall take effect upon its approval; provided that the amendments made to section 853-4, Hawaii Revised Statutes, by section 6 of this Act shall not be repealed when that section is reenacted on June 30, 2026, pursuant to section 15 of Act 19, Session Laws of Hawaii 2020.

THE SENATE	S.B. NO.	2757
THIRTY-SECOND LEGISLATURE, 2024		S.D. 1
STATE OF HAWAII