Discussion of Hawaii’s Current Laws and Proposed Changes

In this section we wish to explain Hawaii’s current laws which comprise a portion of the Hawaii Revised Statutes form section 712-1200 to 712-1209.6.

Three bills to reform Hawaii’s prostitution laws, drafted by Tracy Ryan, have been introduced into Hawaii’s 2017 legislative session. More on the process can be found elsewhere on this website.   

Our three bills aim to reform some of the more obvious problems. One of them has support from legislators and is assigned to the Senate Judiciary Committee as Senate Bill 264.  This bill only addresses the last of the noted code sections, 712-1209.6.  It would allow anyone convicted as a prostitute to clear their records with an easy process. This is likely to be opposed by anti-trafficking advocates who wrote the original law to exclude persons not claiming victim status.  

The other two bills, House Bill 1532 and House Bill 1533 are assigned to the House Committee on Judiciary. The first of the two deals with the three statutes that cover issues of zoning.  Those are 712-1206, 712-1207 and 712-1209.  Since we are unlikely to achieve a situation where there is no zoning ability to control visible sex work (commonly called street walking), our reform has concentrated on repealing two of these statutes while reforming the remaining one to allow sex worker advocates a place at the table in setting up zones of control.

The most controversial bill is House Bill 1533 which has gotten a lot of media attention and is now subject to many attacks from the moral crusaders.  This repeals the penalties for adult consensual acts including those of the seller, purchaser and manager. Non-consensual acts that are engaged in by managers remain serious criminal offenses.  

Issues regarding minors are not addressed in the repeal bill. They should be discussed more fully when the public has a better understanding of the realities than they do now. They have been exposed to too many fear-based news items. Our approach through these bills is not perfect. There may be technical issues we have missed and we have left a number of things for later discussion. We are working with local stakeholders, community members, public health experts, civil liberties defenders and harm reduction advocates to organize a comprehensive, rights-based approach to legislating the sex industry.

712-1200 Prostitution. (1)  A person commits the offense of prostitution if the person:

     (a)  Engages in, or agrees or offers to engage in, sexual conduct with another person for a fee; or

     (b)  Pays, agrees to pay, or offers to pay a fee to another to engage in sexual conduct.

   (2)  As used in subsection “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.

     “Minor” means a person who is less than eighteen years of age.

     (3)  Prostitution is a petty misdemeanor; provided that:

     (a)  If the person who commits the offense under subsection (1)(a) is a minor, prostitution is a violation; and

     (b)  If the person who commits the offense under subsection (1)(b) does so in reckless disregard of the fact that the other person is a victim of sex trafficking, prostitution is a class C felony.

     (4)  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 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 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 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 paragraph (1)(a).  The minor shall be released, referred, or transported pursuant to subsection 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.”

Our comments on 712-1200

This is the basic law regarding prostitution.  It defines it and sets penalties.  Our reform efforts would eliminate the penalties for adults, both purchaser and seller. It would retain the civil violation and family court jurisdictions for persons under 18.  The bill draft we have would also repeal section (5) regarding inappropriate police actions in the theory that this clause would be moot if the penalties and threats of arrest are repealed.  This question could be open to further discussion.  

We also repeal the felony for someone who recklessly disregards the fact that a person is a sex trafficking victim.  This is done in the understanding that no such case will ever likely occur. However, it is also open to discussion.  

712-1201 Advancing prostitution; profiting from prostitution; definition of terms.

In sections 712-1202 and 712-1203:

     (1)  A person “advances prostitution” if, acting other than as a prostitute or a patron of a prostitute, 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.

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

Our Comments on 712-1201.  

This section contains the definitions of promoting prostitution that are referenced in other areas of the criminal code. Since they do not in and of themselves describe an offense there is no change proposed by us to this section.

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, or intimidation to engage in prostitution, or profits from such conduct by another; or

     (b)  Advances or profits from prostitution of a minor; provided that with respect to the victim’s age, the prosecution shall be required to prove only that the person committing the offense acted negligently.

     (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.

    “Threat” means any of the actions listed in section 707-764(1).”

Our comments on 712-1202

This section describes and proscribes the abusive practices that harm prostitutes under “sex trafficking”.  There are some logical and practical problems in enforcing this law that should be discussed with law enforcement.  This is not part of our current reform efforts.  We do want to make it easier to build cases and prosecute the criminals described in this section and hope that local authorities will ultimately take our advice.  

712-1203 Promoting prostitution.(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.

Our comments on 712-1203

This section describes voluntary actions of consenting adults who profit from sex worker management.  We feel such voluntary acts should not be criminalized.  We do understand the desire of prosecutors to have a lesser offense to offer in plea agreements wherein a conviction under section 712-1202 may be difficult to obtain. However, having a code section that requires prosecutors prove no element of the abuse they claim is occurring is a license for abuse.  We have suggested this section be repealed.  However, if it was rewritten to include actual acts of abuse as part of the offense needed to be proved, we would be willing to discuss that.  

[§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 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 guilty of a petty misdemeanor.

Our comments on 712-1206  

This law was passed in 1991 as a way to increase enforcement against Waikiki street prostitution that some community members were upset about.  To our knowledge it was never used by law enforcement due to its vague language.  There is no reason to keep such a law on the books.  

 712-1207 Street solicitation of prostitution; designated areas. (1)  It shall be unlawful for any person within the boundaries of Waikiki and while on any public property to:

     (a)  Offer or agree to engage in sexual conduct with another person in return for a fee; or

     (b)  Pay, agree to pay, or offer to pay a fee to another person to engage in sexual conduct.

     (2)  It shall be unlawful for any person within the boundaries of other areas in this State designated by county ordinance pursuant to subsection (3), and while on any public property to:

     (a)  Offer or agree to engage in sexual conduct with another person in return for a fee; or

     (b)  Pay, agree to pay, or offer to pay a fee to another person to engage in sexual conduct.

     (3)  Upon a recommendation of the chief of police of a county, that county may enact an ordinance that:

     (a)  Designates areas, each no larger than three square miles, as zones of significant prostitution-related activity that is detrimental to the health, safety, or welfare of the general public; or

     (b)  Alters the boundaries of any existing area under paragraph provided that not more than four areas may be designated within the State.

     (4)  Notwithstanding any law to the contrary, any person violating this section shall be guilty of a petty misdemeanor and shall be sentenced to a mandatory term of thirty days imprisonment.  The term of imprisonment shall be imposed immediately, regardless of whether the defendant appeals the conviction, except as provided in subsection (5).

     (5)  As an option to the mandatory term of thirty days imprisonment, if the court finds the option is warranted based upon the defendant’s record, the court may place the defendant on probation for a period not to exceed six months, subject to the mandatory condition that the defendant observe geographic restrictions that prohibit the defendant from entering or remaining on public property, in Waikiki and other areas in the State designated by county ordinance during the hours from 6 p.m. to 6 a.m.  Upon any violation of the geographic restrictions by the defendant, the court, after hearing, shall revoke the defendant’s probation and immediately impose the mandatory thirty-day term of imprisonment.  Nothing contained in this subsection shall be construed as prohibiting the imposition of stricter geographic restrictions under section 706-624(2)(h).

     (6)  Any person charged under this section may be admitted to bail, pursuant to section 804-4, subject to the mandatory condition that the person observe geographic restrictions that prohibit the defendant from entering or remaining on public property, in Waikiki and other areas in the State designated by county ordinance during the hours from 6 p.m. to 6 a.m.  Notwithstanding any other provision of law to the contrary, any person who violates these bail restrictions shall have the person’s bail revoked after hearing and shall be imprisoned forthwith.  Nothing contained in this subsection shall be construed as prohibiting the imposition of stricter geographic restrictions under section 804-7.1.

     (7)  Notwithstanding any other law to the contrary, a police officer, without warrant, may arrest any person when the officer has probable cause to believe that the person has committed a violation of subsection (5) or (6), and the person shall be detained, without bail, until the hearing under the appropriate subsection can be held, which hearing shall be held as soon as reasonably practicable.

     (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.

     (9)  This section shall apply to all counties; provided that if a county enacts an ordinance to regulate street solicitation for prostitution, other than an ordinance designating an area as a zone of significant prostitution-related activity, the county ordinance shall supersede this section and no person shall be convicted under this section in that county.

Our comments on section 712-1207

This is the so called “prostitute free zone” bill aimed as 712-1206 was to control the areas in which visible street prostitution was occurring. It is not well thought out as few of the laws in this entire series are. However, we have limited our suggestions to adding a court ruling in which pro-sex worker groups may participate before a zone is created.  

[§712-1208]  Promoting travel for prostitution.  (1)  A person commits the offense of promoting travel for prostitution if the person knowingly sells or offers to sell travel services that include or facilitate travel for the purpose of engaging in what would be prostitution if occurring in the State.

     (2)  “Travel services” has the same meaning as in section 468L-1.

     (3)  Promoting travel for prostitution is a class C felony.

Our comments on 712-1208

As described this law attempts to criminalize behavior of local residents that does not even occur within the State’s jurisdiction and may well be legal where it does. This is pure moralizing from the folks claiming prostitution is slavery.  We recommend complete repeal of this section.  

[§712-1209]  Solicitation of prostitution near schools or public parks.  (1)  A person commits the offense of solicitation of prostitution near schools or public parks if, within seven hundred fifty feet of a school or public park, the person offers or agrees to pay a fee to another person to engage in sexual conduct.

     (2)  Solicitation of prostitution near schools or public parks is a misdemeanor.

     (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). [L 2011, c 74, §1]

     “Minor” means a person who is less than eighteen years of age.

     “Sexual conduct” has the same meaning as in section 712-1200(2).

Our comments on 712-1209

This law was aimed to stop men from soliciting sex workers where they might be observed by children.  It does not take into account the fact that much of this solicitation is done in doors, what might be done on the street is done at night when children are home, and how close someone would actually have to be to overhear such a conversation. It also describes anyone under 18 as if they were a child unknowing of sex and needing protection form any discussion of it.  Finally if one were to draw a map of where this rule would not apply in downtown Honolulu, the only area would be right in front of the Federal Court House.  This really needs to be repealed.  

712-1209.1  Solicitation of a minor for prostitution. (1)  A person eighteen years of age or older commits the offense of solicitation of a minor for prostitution if the person intentionally, knowingly, or recklessly offers or agrees to pay a fee to a minor or 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.

     (2)  Solicitation of a minor for prostitution is a class C felony.

     (3)  A person convicted of committing the offense of solicitation of a minor for prostitution shall be imposed a fine of not less than $5,000; provided that $5,000 of the imposed fine shall be credited to the general fund.

     (4)  This section shall not apply to any member of a police department, a sheriff, or a law enforcement officer who offers or agrees to pay a fee to a minor while acting in the course and scope of duties.

     (5)  The state of mind requirement for this offense is not applicable to the fact that the person solicited was a minor.  A person is strictly liable with respect to the attendant circumstance that the person solicited was a minor.

     (6)  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). [L 2013, c 247, §1; am L 2014, c 114, §4]

Our comments on 712-1209.1 

This law creates a felony for a person who hires an underage sex worker for sex.  It us poorly written and internally contradictory.  Section (1) and section (5) contradict the issue of state of mind.   Its aim, like much of these statutes, is simply to punish men without regard for the circumstances.  This statute has been left alone for the time being in hopes that youth advocates, law enforcement and others can sit down and work out something that actually will be of some utility.  Although no one wants our youth out selling sex, more intelligent ways can be found to deal with this issue.  

[§712-1209.5]  Habitual solicitation of prostitution.  (1)  A person commits the offense of habitual solicitation of prostitution if the person is a habitual prostitution offender and pays, agrees to pay, or offers to pay a fee to another person to engage in sexual conduct.

     (2)  For the purposes of this section, a person has the status of a “habitual prostitution offender” if the person, at the time of the conduct for which the person is charged, had two or more convictions within ten years of the instant offense for:

     (a)  Prostitution, in violation of section 712-1200(1)(b);

     (b)  Street solicitation of prostitution, in violation of section 712-1207(1)(b);

     (c)  Habitual solicitation of prostitution, in violation of this section;

     (d)  An offense of any other jurisdiction that is comparable to one of the offenses in paragraph (a), (b), or (c); or

     (e)  Any combination of the offenses in paragraph (a), (b), (c), or (d).

A conviction for purposes of this section is a judgment on the verdict or a finding of guilt, or a plea of guilty or nolo contendere.  The convictions must have occurred on separate dates and be for separate incidents on separate dates.  At the time of the instant offense, the conviction must not have been expunged by pardon, reversed, or set aside.

     (3)  Habitual solicitation of prostitution is a class C felony.

Our comments on 712-1209.1 

This makes it a felony for a man who has multiple convictions for soliciting a sex worker.  It is more moralizing and man bashing from the same source of much of bad laws on Hawaii’s books.  There is no rationale for this and it should be repealed promptly.

[§712-1209.6]  Prostitution; motion to vacate conviction.  (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)  Sex Trafficking under section 712-1202; or promoting prostitution under section 712-1203; or

     (b)  A severe form of trafficking as defined in title 22 United States Code section 7102(13).

     (2)  A motion filed under this section shall:

     (a)  Be in writing;

     (b)  Be signed and sworn to by the petitioner;

     (c)  Be made within six years after the date that the person ceases to be a victim as described in subsection (1), subject to reasonable concerns for the safety of the defendant, family members of the defendant, or other victims of the trafficking that may be jeopardized by the bringing of a motion, or for other reasons consistent with the purpose of this section;

     (d)  Describe all the grounds and evidence for vacation of a conviction which are available to the petitioner and of which the petitioner has or by the exercise of reasonable diligence should have knowledge, and provide copies of any official documents showing that the defendant is entitled to relief under this section; and

     (e)  Be subject to the review and written approval of the state agency or county prosecutor responsible for prosecuting the offense that is the subject of the motion to vacate conviction.

     (3)  The court shall hold a hearing on a motion filed under this section if the motion satisfies the requirements of subsection (2); provided that the court may dismiss a motion without a hearing if the court finds that the motion fails to assert grounds on which relief may be granted.

     (4)  If the court grants a motion filed under this section, the court shall vacate the conviction.

     (5)  A person making a motion to vacate pursuant to this section has the burden of proof by a preponderance of the evidence.

     (6)  This section shall not apply to a motion to vacate a conviction under this chapter for:

  1. Sex trafficking under section
  2. Promoting prostitution under section 712-1203; or

     (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.

Our comments on section.712-1209.6

This law was passed to allow sex trafficking victims who had been convicted of a prostitution offense to expunge that offense from their records. It creates a complicated legal process to prove victimization and excludes all others with similar convictions from using the benefit of the statute.  We feel that all convictions should be automatically expunged on the date that the laws they are related are repealed. If we do not get our way on the repeal of laws we would ask that this section be amended to allow all sex workers to clear a conviction with a simple element of proof.  We suggested that the element to demonstrate is that there be no further convictions for three years.