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 in persons as defined in title 22 United States Code section 7102(9)(A).

(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:

(a) Sex trafficking under section 712-1202;

(b) 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. [L 2012, c 216, 2; am L 2015, c 35, 29; am L 2016, c 206, 16]

 

COMMENTARY ON 712-1209.6

 

Act 216, Session Laws 2012, added this section to: (1) authorize a person convicted of committing the offense of prostitution to file a motion to vacate the conviction under certain circumstances; and (2) establish procedures for the motion to vacate the conviction. The legislature found that human trafficking, consisting of the subjugation, recruitment, harboring, or transportation of people for the purpose of forced labor or services, or commercial sexual exploitation, was one of the fastest growing criminal industries.  Act 216 would assist in combating human trafficking by allowing trafficking victims who were forced into prostitution to file a motion to have their prostitution convictions vacated from their records. Conference Committee Report No. 109-12.

Act 35, Session Laws 2015, amended subsection (1)(b) by changing: (1) the phrase "severe form of trafficking" to "severe form of trafficking in persons"; and (2) "title 22 United States Code section 7102(13)" to "title 22 United States Code section 7102(9)(A)."

Act 206, Session Laws 2016, amended this section to conform to amendments made to other sections in the Hawaii Revised Statutes by Act 206. Senate Standing Committee Report No. 3450.

 

 

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