PART I. PROSTITUTION, PROMOTING PROSTITUTION, AND SEX TRAFFICKING
Part heading amended by L 2016, c 206, §11.
Liability for coercion into prostitution, see chapter 663J.
§712-1200 Prostitution. (1) A person commits the offense of prostitution if the person engages in, or agrees or offers to engage in, sexual conduct with another person in return for a fee or anything of value.
(2) As used in this section:
"Minor" means a person who is less than eighteen years of age.
"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.
(3) Prostitution is a petty misdemeanor; provided that if the person who commits the offense under subsection (1) is a minor, prostitution is a violation.
(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 no less than $500 but no more than $1,000 and the person may be sentenced to a term of imprisonment of no 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 make an order converting the unpaid portion of the fine to community service as authorized by section 706‑605(1);
(b) For any subsequent offense, a fine of no less than $500 but no 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; and
(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 three 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.
(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; 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.
(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 subsection (1). The minor shall be released, referred, or transported pursuant to section 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. [L 1972, c 9, pt of §1; am L 1981, c 110, §1; am L 1986, c 314, §§73, 74; am L 1990, c 204, §1; am L 1993, c 130, §1; am L 1998, c 177, §2; am L 2011, c 145, §7; am L 2012, c 216, §3; am L 2013, c 247, §3; am L 2014, c 114, §3; am L 2016, c 206, §12 and c 231, §51; am L 2019, c 176, §1; am L 2021, c 68, §4]
In subsection (2), definitions rearranged pursuant to §23G-15.
COMMENTARY ON §712-1200
History has proven that prostitution is not going to be abolished either by penal legislation nor the imposition of criminal sanctions through the vigorous enforcement of such legislation. Yet the trend of modern thought on prostitution in this country is that "public policy" demands that the criminal law go on record against prostitution. Defining this "public policy" is a difficult task. Perhaps it more correctly ought to be considered and termed "public demand"--a widespread community attitude which the penal law must take into account regardless of the questionable rationales upon which it is based.
A number of reasons have been advanced for the suppression of prostitution, the most often repeated of which are: "the prevention of disease, the protection of innocent girls from exploitation, and the danger that more sinister activities may be financed by the gains from prostitution." These reasons are not convincing. Venereal disease is not prevented by laws attempting to suppress prostitution. If exploitation were a significant factor, the offense could be dealt with solely in terms of coercion. Legalizing prostitution would decrease the prostitute's dependence upon and connection with the criminal underworld and might decrease the danger that "organized crime" might be financed in part by criminally controlled prostitution.
Our study of public attitude in this area revealed the widespread belief among those interviewed that prostitution should be suppressed entirely or that it should be so restricted as not to offend those members of society who do not wish to consort with prostitutes or to be affronted by them. Making prostitution a criminal offense is one method of controlling the scope of prostitution and thereby protecting those segments of society which are offended by its open existence. This "abolitionist" approach is not without its vociferous detractors. There are those that contend that the only honest and workable approach to the problem is to legalize prostitution and confine it to certain localities within a given community. While such a proposal may exhibit foresight and practicality, the fact remains that a large segment of society is not presently willing to accept such a liberal approach. Recognizing this fact and the need for public order, the Code makes prostitution and its associate enterprises criminal offenses.
This section makes the offense of prostitution contingent on the commission by a male or female of at least one of three acts: (1) engaging in sexual conduct with another person for a fee, or (2) agreeing to engage in sexual conduct with another person for a fee, or (3) an offer to engage in sexual conduct with another person for a fee. Under this section the sex of the parties or prospective parties is immaterial. It is no defense under this section that: (a) both parties were of the same sex, or (b) the party who accepted, agreed to accept, or solicited the fee was a male and the party who tendered or agreed or offered to tender the fee was a female. To emphasize the immateriality of the sex of the parties, the phrase "he or she" is used for the actor in subsection (1), albeit under chapter 701 "he" includes any natural person. The word "person" is also used in order to denote either the masculine or feminine gender as the particular case demands.
Subsection (2) defines "sexual conduct." As used in subsection (1) it is given a wide scope, meaning "sexual intercourse," "deviate sexual intercourse," or "sexual contact," as those terms are defined in §707-700. Subsection (3) provides that the offense is a petty misdemeanor.
The Code's provision on prostitution is similar to previous Hawaii law insofar as it applies to both male and female prostitution. However, unlike prior law, the Code does not cover indiscriminate sexual intercourse without hire. Instead of the vague word "lewdness," the Code gains some specificity by employing statutorily defined phrases. In the area of penalty, previous law imposed a fine of not more than $1,000 or imprisonment of not more than one year, or both. The Code lowers these maxima to $500 and 30 days, respectively, by making the offense a petty misdemeanor. This has been done on the recommendation of some judges and with the concurrence of the Honolulu Police Department. Since the sentences presently imposed do not, in fact, generally exceed those authorized for a petty misdemeanor, the Code is in accord with present practice.
SUPPLEMENTAL COMMENTARY ON §712-1200
Act 110, Session Laws 1981, added subsection (4) to specify the sentencing alternatives upon conviction of a defendant. The legislature felt that some form of mandatory sentence was necessary to curb prostitution and the attendant crimes of violence and crimes against property. Senate Conference Committee Report No. 15, House Conference Committee Report No. 25.
Act 204, Session Laws 1990, amended this section to clarify that the customer of a prostitute would also be committing the crime of prostitution. The legislature felt that buyers and sellers of illegal business transactions should be targets for prosecution. House Standing Committee Report No. 1205-90.
Act 130, Session Laws 1993, amended this section to permit deferred pleas under chapter 853 in first-offense prostitution cases and to prohibit expungement pursuant to §831-3.2 until four years following discharge. The Act also provided that a plea previously entered by a defendant under §853-1 for prostitution is considered a prior offense. Conference Committee Report No. 62.
Act 177, Session Laws 1998, amended this section to provide that any offense for which a person is convicted of prostitution is probationable, and that the court may impose prostitution intervention classes for only one term of probation. The legislature found that prostitution was a multi-faceted problem which required efforts to encourage persons involved in the sex industry to seek alternative lifestyles and employment options. The legislature further found that persons involved in prostitution were often not capable of exploring those options, and thus, those persons needed assistance in finding educational and employment opportunities that would support their desire to leave prostitution. Conference Committee Report No. 155.
Act 145, Session Laws 2011, amended this section by extending the offense of prostitution to include those who pay, agree to pay, or offer to pay a fee to another person to engage in sexual conduct. Conference Committee Report No. 76.
Act 216, Session Laws 2012, amended the language in subsection (4) that established a mandatory fine of $1,000 for the commission of the first and any subsequent offense of prostitution to establish instead a minimum fine of $500 for the commission of the first and any subsequent offense of prostitution. Conference Committee Report No. 109-12.
Act 247, Session Laws 2013, amended this section to clarify the minimum and maximum fine for a person convicted of committing the offense of prostitution. Conference Committee Report No. 64.
Act 114, Session Laws 2014, amended subsection (2) by adding sadomasochistic abuse as an element of the offense of prostitution. Act 114 also amended subsection (5) by clarifying that the law enforcement exemption from the offense of prostitution excludes acts of sadomasochistic abuse and sexual penetration. The legislature believed that it was unnecessary for a law enforcement officer to engage in sexual intercourse in order to make an arrest for prostitution because it is the financial transaction that makes the act illegal under the offense of prostitution. Senate Standing Committee Report No. 3249, Conference Committee Report No. 41-14.
Act 206, Session Laws 2016, amended this section, among others, to establish a victim and survivor-centered approach to comprehensive anti-sex trafficking laws. Specifically, Act 206 amended this section by: (1) establishing a class C felony for the act of paying for sex in reckless disregard of the fact that the other person is a victim of sex trafficking; and (2) specifying that when a minor under the age of eighteen commits the act of engaging in or offering to engage in sexual conduct with another person for a fee, it is not a criminal offense, but rather a violation that subjects the minor to the jurisdiction of the family court. 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 231, Session Laws 2016, amended subsection (1) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).
Act 176, Session Laws 2019, amended this section to decrease from four to three years the period of time that a person is required to wait before applying to expunge a deferred plea to a prostitution charge. The legislature found that by helping trafficking victims to clear their criminal records, Act 176 would support victims in reintegrating into society and finding non-exploitative employment, bring about substantial cultural reform, and send a strong message that a person's participation in prostitution is often complex and should not bar access to resources, safety, and compassion. Conference Committee Report No. 53, Senate Standing Committee Report No. 786.
Act 68, Session Laws 2021, amended this section to: (1) remove from the scope of the offense of prostitution, the act of paying another to engage in sexual conduct, which was reestablished under Act 68 as the separate offense of commercial sexual exploitation; (2) provide that the compensation for engaging in sexual conduct includes anything of value; (3) clarify the discretion of courts to convert the unpaid portion of a fine to community service; (4) repeal provisions pertaining to prostitution intervention classes for probationers; and (5) clarify that the exemption for law enforcement officers applies to those engaging in undercover operations and that under no circumstances does sexual contact initiated by a law enforcement officer, sexual penetration, or sadomasochistic abuse fall within the course and scope of duties. 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.
Law Journals and Reviews
The Protection of Individual Rights Under Hawai`i's Constitution. 14 UH L. Rev. 311 (1992).
Criminal Procedure Rights Under the Hawaii Constitution Since 1992. 18 UH L. Rev. 683 (1996).
Prostitution: Protected in Paradise? 30 UH L. Rev. 193 (2007).
Hawai`i's Right to Privacy. 33 UH L. Rev. 669 (2011).
Evidence did not sufficiently prove whether money was given as a gift or as a fee. 56 H. 409, 538 P.2d 1206 (1975).
Subsection (4) eliminates power of court to grant deferred acceptance of guilty pleas. 66 H. 101, 657 P.2d 1026 (1983).
Applicable to sex for fee in a private apartment. 66 H. 616, 671 P.2d 1351 (1983).
Prohibition is gender-neutral; even if not, section did not deny equal protection. 67 H. 608, 699 P.2d 983 (1985).
Deferred acceptance of no-contest plea or deferred acceptance of guilty plea cannot be accepted under this section. 74 H. 75, 837 P.2d 776 (1992).
Because maximum authorized term of imprisonment for a prostitution offense is thirty days, prostitution is presumptively a petty offense to which right to a trial by jury does not attach; defendant did not have a right to jury trial on prostitution charges. 77 H. 162, 883 P.2d 83 (1994).
District court imposed illegal sentences, where defendant pleaded guilty to six offenses of prostitution, pleading guilty to each offense in reverse chronological order, and defendant was sentenced, in reverse chronological order, to fines of $500 for each offense. 77 H. 394, 885 P.2d 1135 (1994).
Under the plain meaning of §707-700 and this section, touching the sexual or other intimate parts of another person, for a fee, constitutes prostitution, even if the touching occurs through clothing. 88 H. 19, 960 P.2d 1227 (1998).
Subsection (4) does not require that a "subsequent" offense occur on a separate day. 90 H. 262, 978 P.2d 700 (1999).
As the exception in subsection (5) would negative the prostitution offense defendant was charged with, it constituted a defense; in order to claim the benefit of this defense, evidence that defendant fell within the exception must have been adduced; where defendant did not adduce any such evidence at trial, the prosecution was not required to disprove the defense until there was evidence that the defendant fell within subsection (5). 114 H. 1, 155 P.3d 1102 (2007).
In prostitution case, application of this section (2006) to defendant was not unconstitutional. 114 H. 1, 155 P.3d 1102 (2007).
A "fee" is not explicitly limited to monetary compensation, but includes payment in the form other than money and, therefore, under this section, is money or a "material gain" for sexual conduct; under the facts of the case, the forty-dollar drinks constituted a fee under subsection (1). 123 H. 251, 231 P.3d 968 (2010).
Where the record did not support the prosecution's conclusion that defendant had "an implicit understanding" that officer's purchase of the forty-dollar drinks was for sexual contact, given the totality of circumstances, the prosecution failed to prove beyond a reasonable doubt that defendant "engaged in sexual conduct for a fee". 123 H. 251, 231 P.3d 968 (2010).
The intermediate court of appeals did not err in concluding the evidence adduced at trial was sufficient to sustain conviction for prostitution, where: (1) defendant responded to an online advertisement in which an officer portrayed an escort; (2) the email conversations between defendant and "escort" were replete with sexual innuendo; and (3) defendant followed through with plans to meet "escort" in person. 134 H. 361, 341 P.3d 567 (2014).
"Convicted" in subsection (4) is used in pre-sentence context, and means ascertainment of guilt. 9 H. App. 165, 827 P.2d 1156 (1992).
Whether the men responded to defendant's offers and the substance of their responses were irrelevant under prostitution statute; defendant merely had to offer to engage in sex in exchange for a fee. There was substantial evidence for trial judge to find that defendant offered to engage in sexual conduct in exchange for money. 79 H. 123 (App.), 899 P.2d 406 (1995).
As court had no discretion under subsection (4)(b) in imposing stiffer sentence on defendant once it was established that defendant was a subsequent prostitution offender, defendant was not required to raise a good-faith challenge to the prior conviction in order to trigger the State's burden to prove that defendant was represented by counsel or waived such representation at the time of defendant's prior conviction. 89 H. 492 (App.), 974 P.2d 1082 (1998).
Where officer testified to a prior arrest of defendant, defendant admitted to prior arrest by officer, trial court was able to evaluate and match physical identifying information in criminal history abstract with defendant, abstract set out the prior prostitution conviction of a defendant with the same name, and defendant had rather unusual name for person in Hawaii, evidence was sufficient to establish beyond a reasonable doubt that defendant had a prior prostitution conviction for purposes of subsection (4). 89 H. 492 (App.), 974 P.2d 1082 (1998).
As the First Amendment does not protect speech which is part of a course of criminal conduct, and defendant's words were an integral part of defendant's conduct in violating a valid statute prohibiting offers or agreements to engage in sex for a fee (this section), defendant's prosecution did not violate the First Amendment. 107 H. 360 (App.), 113 P.3d 811 (2005).
This section does not proscribe constitutionally protected conduct and was not overbroad as applied to defendant's actual conduct; the language of this section also was sufficiently clear that defendant was not required to guess at its meaning, this section gave defendant fair warning that defendant was prohibited from offering or agreeing to engage in sex for a fee. 107 H. 360 (App.), 113 P.3d 811 (2005).
Trial court's factual findings pertaining to defendant's offer and agreement to engage in sex for $200 were not clearly erroneous and there was sufficient evidence to support defendant's prostitution conviction under this section. 107 H. 360 (App.), 113 P.3d 811 (2005).
1. Prop. Del. Cr. Code, comments at 427.
2. Id. See also, M.P.C., Tentative Draft No. 9, comments at 171 (1959).
3. See H.R.S. §768-51.
4. See id. §768-52(1).
5. See id. §768-52(2).