Bill Text: HI SB77 | 2011 | Regular Session | Amended
Bill Title: Anonymous Filings; Labor and Sex Trafficking
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2011-03-18 - (H) Passed Second Reading as amended in HD 1 and referred to the committee(s) on JUD with none voting no (0) and Chang, Coffman, Herkes, Keith-Agaran, Nakashima, Wooley excused (6). [SB77 Detail]
Download: Hawaii-2011-SB77-Amended.html
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THE SENATE |
S.B. NO. |
77 |
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TWENTY-SIXTH LEGISLATURE, 2011 |
S.D. 1 |
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STATE OF HAWAII |
H.D. 1 |
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A BILL FOR AN ACT
RELATING TO THE COURTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
PART I
SECTION 1. Chapter 634, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:
"Part . ANONYMOUS FILINGS
§634‑ Anonymous filings. (a) Upon petition to a court under this section, the court may allow a petition, complaint, motion, or other document to be filed by a plaintiff identifying the parties as "jane doe" or "john doe"; provided that when deciding to permit a "jane doe" or "john doe" filing, the court may consider factors including:
(1) The severity of the plaintiff's injury;
(2) The reasonableness of the plaintiff's fears;
(3) The plaintiff's vulnerability to retaliation;
(4) The risk of prejudice to the defendant; and
(5) How the public interest would be served if the plaintiff is allowed to remain anonymous.
(b) If there are compelling reasons sufficient to outweigh the public's interest in the disclosure of the parties and it is the belief of the court that the parties' court files may become a vehicle for improper use if not anonymous, the court may seal from the public all documents or portions of documents that would identify the parties or contain sufficient information from which the parties' identities could be discerned or inferred."
SECTION 2. Section 604-10.5, Hawaii Revised Statutes, is amended to read as follows:
"§604-10.5 Power to enjoin and temporarily restrain harassment. (a) For the purposes of this section:
"Course of conduct" means a pattern of conduct composed of a series of acts over any period of time evidencing a continuity of purpose.
"Harassment" means:
(1) Physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault; or
(2) An intentional or knowing course of conduct
directed at an individual that seriously alarms or disturbs consistently or continually
bothers the individual[,] and that serves no legitimate purpose;
provided that such course of conduct would cause a reasonable person to suffer
emotional distress.
(b) The district courts shall have power to enjoin or prohibit or temporarily restrain harassment.
(c) Any person who has been subjected to harassment may petition the district court of the district in which the petitioner resides for a temporary restraining order and an injunction from further harassment.
(d) A petition for relief from harassment
shall be in writing and shall allege that a past act or acts of harassment may
have occurred[,] or that threats of harassment make it probable that
acts of harassment may be imminent; and shall be accompanied by an affidavit
made under oath or statement made under penalty of perjury stating the specific
facts and circumstances from which relief is sought.
(e) Upon petition to a district court under this section, the court may allow a petition, complaint, motion, or other document to be filed identifying the petitioner as "jane doe" or "john doe"; provided that the court finds that the "jane doe" or "john doe" filing is reasonably necessary to protect the privacy of the petitioner and will not unduly prejudice the prosecution or the defense.
In considering a petition requesting a "jane doe" or "john doe" filing, the court shall weigh the petitioner's interest in privacy against the public's interest in disclosure.
The court, only after finding clear and convincing evidence that would make public inspection inconsistent with the purpose of this section, may seal from the public all documents or portions of documents that would identify the petitioner or contain sufficient information from which the petitioner's identity could be discerned or inferred.
[(e)] (f) Upon petition to a
district court under this section, the court may temporarily restrain the
person or persons named in the petition from harassing the petitioner upon a
determination that there is probable cause to believe that a past act or acts
of harassment have occurred or that a threat or threats of harassment may be
imminent. The court may issue an ex parte temporary restraining order either
in writing or orally; provided that oral orders shall be reduced to writing by
the close of the next court day following oral issuance.
[(f)] (g) A temporary
restraining order that is granted under this section shall remain in effect at
the discretion of the court for a period not to exceed ninety days from the
date the order is granted. A hearing on the petition to enjoin harassment
shall be held within fifteen days after the temporary restraining order is
granted. [In the event that] If service of the temporary
restraining order has not been effected before the date of the hearing on the
petition to enjoin, the court may set a new date for the hearing; provided that
the new date shall not exceed ninety days from the date the temporary
restraining order was granted.
The parties named in the petition may file or
give oral responses explaining, excusing, justifying, or denying the alleged
act or acts of harassment. The court shall receive all evidence that is
relevant at the hearing[,] and may make independent inquiry.
If the court finds by clear and convincing evidence that harassment as defined in paragraph (1) of that definition exists, it may enjoin for no more than three years further harassment of the petitioner, or that harassment as defined in paragraph (2) of that definition exists, it shall enjoin for no more than three years further harassment of the petitioner; provided that this paragraph shall not prohibit the court from issuing other injunctions against the named parties even if the time to which the injunction applies exceeds a total of three years.
Any order issued under this section shall be
served upon the respondent. For the purposes of this section,
"served" shall mean actual personal service, service by certified
mail, or proof that the respondent was present at the hearing [in] at
which the court orally issued the injunction.
Where service of a restraining order or
injunction has been made or where the respondent is deemed to have received
notice of a restraining order or injunction order, any knowing or intentional
violation of the restraining order or injunction order shall subject the
respondent to the provisions in subsection [(h).] (i).
Any order issued shall be transmitted to the chief of police of the county in which the order is issued by way of regular mail, facsimile transmission, or other similar means of transmission.
[(g)] (h) The court may grant
the prevailing party in an action brought under this section[,] costs
and fees, including attorney's fees.
[(h)] (i) A knowing or
intentional violation of a restraining order or injunction issued pursuant to
this section is a misdemeanor. The court shall sentence a violator to
appropriate counseling and shall sentence a person convicted under this section
as follows:
(1) For a violation of an injunction or restraining
order that occurs after a conviction for a violation of the same injunction or
restraining order, [a violator] the person shall be sentenced to
a mandatory minimum jail sentence of not less than forty-eight hours; and
(2) For any subsequent violation that occurs after a second conviction for violation of the same injunction or restraining order, the person shall be sentenced to a mandatory minimum jail sentence of not less than thirty days.
The court may suspend any jail sentence, except for the mandatory sentences under paragraphs (1) and (2), upon appropriate conditions, such as that the defendant remain alcohol- and drug-free, conviction-free, or complete court-ordered assessments or counseling. The court may suspend the mandatory sentences under paragraphs (1) and (2) where the violation of the injunction or restraining order does not involve violence or the threat of violence. Nothing in this section shall be construed as limiting the discretion of the judge to impose additional sanctions authorized in sentencing for a misdemeanor offense.
[(i)] (j) Nothing in this
section shall be construed to prohibit constitutionally protected
activity."
PART II
SECTION 3. Chapter 551D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§551D- Witness and notary requirements. (a) A durable power of attorney shall not be enforceable unless it is:
(1) Signed by two witnesses who satisfy the requirements of subsection (b); and
(2) Acknowledged by a notary public.
(b) A person shall not be a witness to the execution of a durable power of attorney unless the person is:
(1) Eighteen years of age or older;
(2) Not the attorney in fact named in the durable power of attorney;
(3) Not related to the attorney in fact or to the other witness; and
(4) Witness to either the signing of the instrument by the principal or the principal's acknowledgment of the signature on the durable power of attorney."
SECTION 4. Chapter 560, Hawaii Revised Statutes, is amended by adding a new section to article 5 to be appropriately designated and to read as follows:
"§560:5- Witness and notary requirements. (a) A power of attorney shall not be enforceable unless it is:
(1) Signed by two witnesses who satisfy the requirements of subsection (b); and
(2) Acknowledged by a notary public.
(b) A person shall not be a witness to the execution of a power of attorney unless the person is:
(1) Eighteen years of age or older;
(2) Not the attorney in fact named in the power of attorney;
(3) Not related to the attorney in fact or to the other witness; and
(4) Witness to either the signing of the instrument by the principal or the principal's acknowledgment of the signature on the power of attorney."
SECTION 5. Chapter 657, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:
"§657- Fraud or undue influence; wills, estate plans, or trusts. All actions to challenge or contest a will, estate plan, or trust where:
(1) It is alleged that the testator, principal, or property owner who established the will, estate plan, or trust amended the provisions of the will, estate plan, or trust as a result of fraud or undue influence by:
(A) The beneficiary or beneficiaries of the amendments; or
(B) Persons acting as agents of the parties in subparagraph (A); and
(2) The action is commenced by persons designated as beneficiaries of the will, estate plan, or trust prior to the amendments;
shall be brought within nine years after the cause of action accrued or within six years after discovery of the fraud or undue influence, whichever period is longer."
PART III
SECTION 6. Section 707-701, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:
"(1) A person commits the offense of murder in the first degree if the person intentionally or knowingly causes the death of:
(a) More than one person in the same or separate incident;
(b) A law enforcement officer, judge, or prosecutor arising out of the performance of official duties;
(c) A person known by the defendant to be a witness in a criminal prosecution and the killing is related to the person's status as a witness;
(d) A person by a hired killer, in which event both
the person hired and the person responsible for hiring the killer shall be
punished under this section; [or]
(e) A person while the defendant was imprisoned[.];
or
(f) A person known by the defendant to be a witness in a family court case and the killing is related to the person's status as a witness."
PART IV
SECTION 7. Chapter 707, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:
"PART . LABOR TRAFFICKING
§707-A Definitions. As used in this part:
"Labor" means work of economic or financial value.
"Services" means a relationship between a person and the actor in which the person performs activities under the supervision of or for the benefit of the actor or a third party.
"Venture" means a business relationship between two or more parties to undertake economic activity together.
§707-B Labor trafficking in the first degree. (1) A person commits the offense of labor trafficking in the first degree if the person knowingly provides or obtains or attempts to provide or obtain another person for labor or services, by any of the following means:
(a) Extortion as defined in section 707-764;
(b) Kidnapping as defined in section 707-720;
(c) Unlawful imprisonment as defined in section 707-721 or 707-722;
(d) Force, threat, or intimidation;
(e) Deception, as defined in section 708-800, or fraud, which means making material false statements, misstatements, or omissions to induce or maintain the person to engage or continue to engage in the labor or services;
(f) Requiring that labor be performed to retire, repay, or service a real or purported debt, if performing the labor or services is the exclusive method allowed to retire, repay, or service the debt and the indebted person is required to repay the debt with direct labor in place of currency; provided that this shall not include labor or services performed by a child for the child's parent or guardian;
(g) Assault in violation of either section 707-710, 707‑711, or 707-712;
(h) Withholding any of the trafficked person's government-issued identification documents with the intent to impede the movement of the person;
(i) Using any scheme, plan, or pattern intended to cause the person to believe that if the person did not perform the labor or services, then the person or a friend or a member of the person's family would suffer serious harm, serious financial loss, or physical restraint; or
(j) Using or threatening to use any form of domination, restraint, or control over the person which, given the totality of the circumstances, would have the reasonably foreseeable effect of causing the person to engage in or to remain engaging in the labor or services.
(2) Labor trafficking in the first degree is a class A felony.
§707-C Labor trafficking in the second degree. (1) A person commits the offense of labor trafficking in the second degree if the person knowingly:
(a) Recruits, entices, solicits, isolates, harbors, transports or maintains, or so attempts, another person knowing that the person will be subjected to forced labor or services under section 707-B;
(b) Either acting as an individual or using a licensed business enterprise, aids another in a venture knowing that the other person in that venture is committing the offense of labor trafficking in the first degree; or
(c) Benefits, financially or by receiving something of value, from participation in a venture knowing or in reckless disregard of the fact that another person has engaged in any act in violation of paragraph (a) or (b) in the course of that venture or that another person in that venture is committing the offense of labor trafficking in the first degree.
(2) Labor trafficking in the second degree is a class B felony; provided that if a violation of subsection (1) involves kidnapping or an attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an attempt to cause the death of a person, or if a death results, the offense shall be a class A felony.
(3) Upon conviction of a defendant under subsection (1), the court shall also order that any and all business licenses issued by the State be revoked for the business or enterprise that the defendant used to aid in the offense of labor trafficking in the second degree; provided that the court, in its discretion, may reinstate the business license upon petition to the court by any remaining owner or partner of the business or enterprise who was not convicted of an offense under this section.
§707-D Additional sentencing considerations; victims held in servitude. In addition to the factors set forth in sections 706-606 and 706-621, when determining the particular sentence to be imposed on a defendant convicted under section 707-B or 707‑C, the court shall consider:
(a) The time in which the victim was held in servitude; and
(b) The number of victims.
§707-E Extended terms of imprisonment; labor trafficking offenses. If a person is found guilty of a violation under section 707-B or 707-C and the victim suffered bodily injury, the person may be sentenced to an extended indeterminate term of imprisonment. Subject to the procedures set forth in section 706-664, the court may impose, in addition to the indeterminate term of imprisonment provided for the grade of offense, an additional indeterminate term of imprisonment as follows:
(a) Bodily injury – an additional two years of imprisonment;
(b) Serious bodily injury – an additional five years of imprisonment;
(c) Permanent or life-threatening bodily injury – an additional fifteen years of imprisonment; or
(d) If death results, the defendant shall be sentenced in accordance with the homicide statute relevant for the level of criminal intent.
When ordering an extended term sentence, the court shall impose the maximum length of imprisonment. The minimum length of imprisonment for an extended term sentence under paragraphs (a), (b), (c), or (d) shall be determined by the Hawaii paroling authority in accordance with section 706-669.
§707-F Restitution for victims of labor trafficking. (1) In addition to any other penalty, and notwithstanding a victim's failure to request restitution under section 706-646(2), the court shall order restitution to be paid to the victim, consisting of an amount that is the greater of:
(a) The total gross income or value to the defendant of the victim's labor or services; or
(b) The value of the victim's labor or services, as guaranteed under the minimum wage provisions of chapter 387 or the Fair Labor Standards Act of 1938, P.L. 75-718, 29 United States Code 201 - 219, inclusive, whichever is greater.
(2) The return of the victim to the victim's home country or other absence of the victim from the jurisdiction shall not relieve the defendant of the defendant's restitution obligation.
(3) For purposes of this section, "victim" means the person against whom an offense specified in section 707-B or 707-C has been committed.
§707-G Offense of nonpayment of wages. (1) A person commits the offense of nonpayment of wages if the person, in the capacity of an employer of an employee, wilfully or with intent to defraud fails or refuses to pay wages to the employee. In addition to any other penalty, a person convicted of nonpayment of wages shall be fined not less than $2,000 nor more than $10,000 for each offense.
(2) The offense of nonpayment of wages is:
(a) A class C felony, if the amount owed to the employee is equal to or greater than $2,000 or if the person convicted of nonpayment of wages falsely denies the amount or validity of the wages owed; or
(b) A misdemeanor, if the amount owed to the employee is less than $2,000.
(3) A person commits a separate offense under this section for each pay period during which the employee earned wages that the person failed or refused to pay the employee. If no set pay periods were agreed upon between the person and the employee at the time the employee commenced the work, then each "pay period" shall be deemed to be bi-weekly.
(4) In addition to any other penalty, the court shall order restitution to be paid to the employee, consisting of an amount that is the greater of:
(a) The wages earned by the employee that were unpaid by the person convicted of nonpayment of wages; or
(b) The value of the employee's labor or services, as guaranteed under the minimum wage provisions of chapter 387 or the Fair Labor Standards Act of 1938, P.L. 75-718, 29 United States Code 201 - 219, inclusive, whichever is greater.
(5) An employee who is the victim of nonpayment of wages may bring a civil action to recover all wages owed by the person convicted of nonpayment of wages.
(6) For purposes of this section:
"Employee" means any person working for another for hire, including but not limited to an individual employed in domestic service or at a family or person's home or any individual employed by the individual's parent or spouse, or independent contractors.
"Person" includes any individual, partnership, association, joint-stock company, trust, corporation, the personal representative of the estate of a deceased individual, or the receiver, trustee, or successor of any of the same, employing any persons, but shall not include the United States.
"Wages" means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission, or other basis of calculation.
§707-H Offense of unlawful conduct with respect to documents. (1) A person commits the offense of unlawful conduct with respect to documents if the person knowingly destroys, conceals, removes, confiscates, or possesses any actual or purported government identification document of another person:
(a) In the course of a violation or attempt to commit an offense under section 707-B or 707-C; or
(b) To prevent or restrict, or in an attempt to prevent or restrict, without lawful authority, the ability of the other person to move or travel, to maintain the labor or services of the other person, when the person is or has been the victim of an offense under section 707-B or 707-C.
(2) A person commits the offense of unlawful conduct with respect to documents if the person knowingly destroys, conceals, removes, or confiscates any actual or purported government identification document of an employee.
(3) The offense of unlawful conduct with respect to documents is a class C felony."
PART V
SECTION 8. Chapter 712, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:
"Part . sex trafficking
§712-A Definitions. For purposes of this part:
"Advances", with respect to prostitution, occurs if a person, acting other than a prostitute or a patron of a prostitute, 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.
"Profits", with respect to prostitution, as applicable, means, if, acting other than as a prostitute, receiving compensation for personally-rendered prostitution services, as applicable, the person accepts or receives money or other property, in any form or manner, pursuant to an agreement or understanding with any other person whereby the person participates or is to participate in the proceeds of prostitution.
"Prostitution" means the activity of engaging in, or agreeing or offering to engage in, sexual conduct with another person for a fee.
§712-B Sex trafficking in the first degree. (1) A person commits the offense of sex trafficking in the first degree if the person knowingly:
(a) Advances or profits from the prostitution of an individual who is less than eighteen years of age; or
(b) Advances the prostitution of an individual by the use of any of the following against or to the individual:
(i) Extortion in violation of section 707-764;
(ii) Kidnapping in violation of section 707-720;
(iii) Unlawful imprisonment in violation of either section 707-721 or 707-722;
(iv) Making material false statements, misstatements, or omissions to induce or maintain the person being prostituted to engage in or continue to engage in prostitution;
(v) Requiring that prostitution be performed to retire, repay, or service a real or purported debt;
(vi) Assault in violation of either section 707-710, 707-711, or 707-712; or
(vii) Unlawfully providing to the prostituted person with intent to impair said person's judgment any "dangerous drugs", "detrimental drugs", "harmful drugs", or "intoxicating liquor" as defined in section 712-1240.
(2) In a prosecution under subsection (1)(a) where it is alleged that the person performing prostitution was under eighteen years of age, the prosecution need not prove that the defendant knew the person performing prostitution was under eighteen years of age.
(3) Sex trafficking in the first degree is a class A felony.
§712-C Sex trafficking in the second degree. (1) A person commits the offense of sex trafficking in the second degree if the person advances or profits from prostitution by managing, supervising, controlling, or owning, either alone or in association with others, a house of prostitution or prostitution business or enterprise involving the prostitution of an individual, knowing that the prostitution activity of the individual was obtained, maintained, or advanced by any of the methods set forth in section 712-B(1)(b)(i) through (vii) against or to the individual.
(2) Sex trafficking in the second degree is a class B felony.
§712-D Rights of alleged trafficking victims. It shall be a complete defense to a charge under section 712-B, 712-C, or 712-1200, that the act alleged to have been committed by the accused was obtained, maintained, or advanced by any of the methods set forth in section 712-B(1)(b)(i) through (vii) against or to the accused."
PART VI
SECTION 9. In codifying the new sections added by sections 7 and 8 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.
SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 11. This Act shall take effect on July 1, 2050.
Report Title:
Anonymous Filings; Labor and Sex Trafficking
Description:
Allows a plaintiff to file court documents as "Jane Doe" or "John Doe" under certain circumstances in seeking an injunction in harassment cases. Requires that certain types of powers of attorney be signed by two qualified witnesses and acknowledged by a notary public. Requires challenges or contests to a will, estate plan, or trust be made within a certain time period. Makes it first degree murder to kill a witness in a family court case. Establishes the offenses of labor trafficking and sex trafficking in the first and second degree. Effective July 1, 2050. (SB77 HD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
