§712-1204 REPEALED. L 2011, c 145, §6.
COMMENTARY ON §§712-1201 TO 712-1204
These four sections deal with the non-prostitutes who derive financial gain from the work of prostitutes. The real danger presented by this class of people is that its members have a motive to coerce women or men into prostitution. Through their promotion of prostitution activities they magnify the extent to which prostitution is practiced. Aside from coercion into and the promotion of prostitution, these promoters often gain a vicious hold over the prostitutes under their control.
Section 712-1201 defines the types of conduct which are the gravamen of the offense of promoting prostitution. These types of conduct are termed "advancing prostitution" and "profiting from prostitution." The sections following, §§712-1202, 1203, and 1204, delineate various degrees of the offense of promoting prostitution.
Promoting prostitution in the first degree, as defined by §712-1202, is the most serious offense in this trilogy. The aggravating circumstances are the criminal coercion of the prostitute or the young age of the prostitute. The offense is a class B felony.
Section 712-1203, promoting prostitution in the second degree, deals with two less serious aggravating circumstances in this type of activity: (a) advancing or profiting by operating or owning a house of prostitution or a prostitution business or enterprise involving prostitution by two or more prostitutes, or (b) advancing or profiting from prostitution of a person less than 18 years of age. This section provides penalties against the "madam" of a house of prostitution, those persons who run and control "call girl rings", and lessors and owners of real property who knowingly rent or permit premises to be used for prostitution purposes. It also penalizes those who take under their control for prostitution purposes girls under the age of 18 years. Promoting prostitution in the second degree is made a class C felony.
Section 712-1204 defines the offense of promoting prostitution in the third degree, that is, knowingly advancing or profiting from prostitution. This section strikes at the small scale promoter. The taxicab driver who pimps for a prostitute, the bartender who sets up customers for a prostitute, and the hotel clerk who regularly furnishes the prostitute and his or her customer with accommodations would all come within the ambit of this provision. Of course, if any of the aggravating attendant circumstances previously discussed exist, §§712-1202 or 1203 would apply. Promoting prostitution in the third degree is a misdemeanor.
The previous law dealt both with the criminal coercion of a person to become a prostitute as well as what is commonly referred to as "procuring" a person for the practice of prostitution. The sanction provided was roughly equivalent to a class C felony. These sections also consider other factors, namely the youth of the prostitute and the number of prostitutes involved in the operation. In addition, it provides for three degrees of the offense; the highest degree, presenting the most serious aggravations, is made a class B felony, a more severe sanction than that provided by prior law. The least serious case, promotion in the third degree, is a misdemeanor, the same sanction provided for what was previously termed "soliciting." The best that can be said for the former statutes in this area is that they were inartfully drawn. They probably bordered on vagueness which may have been unconstitutional. The Code achieves greater clarity than the previous law and provides for sanctions which are more realistically addressed to the circumstances involved in the offenses.
SUPPLEMENTAL COMMENTARY ON §§712-1201 TO 712-1204
Act 130, Session Laws 1993, amended §712-1202 to raise, from fourteen to sixteen, the age of exploited minors that would subject a perpetrator to a first degree charge for the offense of promoting prostitution. The Act also amended §§712-1202 and 712-1203 to make the language in these sections gender neutral. The legislature found that there was a need to enlarge the scope of persons subject to increased criminal penalties for promoting teen-age prostitution. Conference Committee Report No. 62.
Act 147, Session Laws 2008, amended §712-1202 by adding a reference to "force, threat, or intimidation" and deleting "criminal coercion." Act 147 also applied the offense to a person who knowingly advances or profits from prostitution of a person less than eighteen, rather than sixteen, years old. The legislature strengthened the laws on prostitution and related offenses to deter and punish sexual exploitation of minors, including obscenity-related activities. Conference Committee Report No. 38-08.
Act 147, Session Laws 2008, amended §712-1203(1) by adding a reference to "prostituted persons." Conference Committee Report No. 38-08.
Act 145, Session Laws 2011, amended §712-1201 by making conforming and nonsubstantive amendments.
Act 145, Session Laws 2011, amended §712-1202 by adding inducing a person to act by specified means and including the use of fraud as elements of promoting prostitution in the first degree. Act 145 also increased the penalty for the offense to a class A felony. Conference Committee Report No. 76.
Act 145, Session Laws 2011, repealed §712-1204, promoting prostitution in the third degree, and amended §712-1203, promoting prostitution in the second degree, by incorporating conduct previously prohibited under §712-1204 within the second degree offense. Act 145 increased the penalty for the second degree offense to a class B felony. Senate Standing Committee Report No. 1137, Conference Committee Report No. 76.
Act 206, Session Laws 2016, amended §712-1201 by amending the section heading to conform to amendments made to other sections in the Hawaii Revised Statutes by Act 206.
Act 206, Session Laws 2016, amended §712-1202, among others, to establish a victim and survivor-centered approach to comprehensive anti-sex trafficking laws. Specifically, Act 206 amended §712-1202 by: (1) replacing the offense of promoting prostitution in the first degree with sex trafficking, a class A felony and violent crime; and (2) specifying that the offense of sex trafficking requires proof of negligence with respect to the victim's age when the victim of sex trafficking is under eighteen years of age. The legislature found that the existing laws relating to prostitution and promoting prostitution may not have been suitable to address certain circumstances in which coercion or other inability to consent is present. Act 206 allowed Hawaii to join other states that had adopted comprehensive anti-sex trafficking legislation. Conference Committee Report No. 147-16, Senate Standing Committee Report No. 3450.
Act 206, Session Laws 2016, amended §712-1203 to change the offense of promoting prostitution in the second degree to the offense of promoting prostitution. Senate Standing Committee Report No. 3450.
Act 68, Session Laws 2021, amended §712-1201 to: (1) amend the definition of "profits from prostitution" to include the acceptance or receipt of anything of value to participate in the proceeds of prostitution activity; and (2) specify that the definitions in this section do not include the conduct of prostituted persons under §712-1200 or persons engaged in commercial sexual exploitation under §712-1200.5. Act 68 also amended §712-1202 to: (1) specify that sex trafficking includes advancing or profiting from prostitution through coercion; and (2) make a person strictly liable for sex trafficking of a minor in terms of the victim’s age. The legislature found that sex trafficking is an ever-evolving criminal enterprise in which traffickers and exploiters find various means to sexually exploit the most vulnerable in the community. The legislature further found that protecting victims from sexual exploitation and holding offenders accountable is difficult given the disparity in power between the victims and perpetrators, and that amending Hawaii's sex trafficking laws to better reflect the current reality and challenges would improve outcomes for trafficking victims and survivors. Senate Standing Committee Report No. 1654, Conference Committee Report No. 45.
§§712-1201 To 712-1204 Commentary:
1. H.R.S. §768-56.
2. Id. §§768-53, 768-54.