Prostitution; Coercion

Provides a civil cause of action for damages to persons injured
as a result of being coerced into prostitution.

THE SENATE                              S.B. NO.           616
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The legislature finds that those who promote
 2 prostitution leave life-long physical, emotional, and financial
 3 scars on their victims, often in the form of personal injury,
 4 disease, mental or emotional harm, and medical and rehabilitation
 5 expenses, as well as the loss of past or future income or earning
 6 capacity.  In some cases, even death may result.
 7      Although the criminal justice system is an important weapon
 8 against prostitution and the promotion of prostitution, the civil
 9 justice system can and must also be used.  The civil justice
10 system can provide an avenue of compensation for those victims
11 who have suffered harm as a result of the promotion of
12 prostitution.  Those who promote prostitution should bear the
13 cost of the harm, including noneconomic damages, caused by that
14 activity in the community.
15      The legislature finds that this is especially true for those
16 who coerce an individual into prostitution.  Under current law,
17 if a person knowingly compels a person by criminal coercion to
18 engage in prostitution, or profits from another's coercive
19 conduct, that person commits the felony offense of promoting

Page 2                                                     
                                     S.B. NO.           616

 1 prostitution in the first degree.
 2      The legislature further finds that the added threat of civil
 3 liability to those who coerce individuals into prostitution, or
 4 profit by that coercion serve as an additional deterrent to the
 5 promotion of prostitution.  A person who has substantial assets
 6 is likely to decide that the added cost of engaging in that
 7 activity is not worth the benefit.  This Act therefore provides a
 8 mechanism whereby the cost of the injuries caused by coercing a
 9 person into prostitution will be borne by those who promote
10 prostitution.  The legislature finds that this Act is necessary
11 to protect the health, safety, and welfare of the people of this
12 State.
13      SECTION 2.  The Hawaii Revised Statutes is amended by adding
14 a new chapter to be appropriately designated and to read as
15 follows:
16                             "CHAPTER
18         -1 Title.  This Act may be cited as the Prostitution
19 Coercion Liability Act.
20         -2 Definitions.  As used in this chapter:
21      "Coerce" means to use or threaten to use any form of
22 domination, restraint, or control for the purpose of causing an

Page 3                                                     
                                     S.B. NO.           616

 1 individual to engage in or remain in prostitution or to
 2 relinquish earnings derived from prostitution.  Coercion exists
 3 if the totality of the circumstances establish the existence of
 4 domination, restraint, or control that would have the reasonably
 5 foreseeable effect of causing an individual to engage in or
 6 remain in prostitution or to relinquish earnings from
 7 prostitution.
 8      "Prostitution" has the same meaning as provided in section
 9 712-1200.
10      "Promoting prostitution" means promoting prostitution in the
11 first or second degree, as provided in sections 712-1202 and 712-
12 1203, respectively.
13         -3 Cause of action for coercion into prostitution;
14 evidence of coercion.  (a)  An individual has a cause of action
15 against a person who:
16      (1)  Coerced the individual into prostitution;
17      (2)  Coerced the individual to remain in prostitution;
18      (3)  Used coercion to collect or receive any of the
19           individual's earnings derived from prostitution; or
20      (4)  Hired, offered to hire, or agreed to hire the
21           individual to engage in prostitution, knowing or having
22           reason to believe that the individual was coerced into

Page 4                                                     
                                     S.B. NO.           616

 1           or coerced to remain in prostitution by another person.
 2 For purposes of paragraphs (1) and (2), money payment by a
 3 prostitute's customer is not coercion under subsection (c)(5) or
 4 (11), or exploiting needs for food or shelter under subsection
 5 (c)(22).  Paragraph (3) shall not apply to minor children who are
 6 dependent on the individual and who may have benefited from or
 7 been supported by the individual's earnings derived from
 8 prostitution.
 9      (b)  An individual has a cause of action against a person
10 who did any of the following while the individual was a minor:
11      (1)  Solicited or induced the individual to practice
12           prostitution;
13      (2)  Promoted the prostitution of the individual;
14      (3)  Collected or received the individual's earnings derived
15           from prostitution; or
16      (4)  Hired, offered to hire, or agreed to hire the
17           individual to engage in prostitution.  Mistake as to
18           age is not a defense to an action under this paragraph.
19      (c)  Evidence of coercion includes:
20      (1)  Physical force or actual or implied threats of physical
21           force;
22      (2)  Physical or mental torture;

Page 5                                                     
                                     S.B. NO.           616

 1      (3)  Implicitly or explicitly leading an individual to
 2           believe that the individual will be protected from
 3           violence or arrest;
 4      (4)  Kidnapping;
 5      (5)  Defining the terms of an individual's employment or
 6           working conditions in a manner that can foreseeably
 7           lead to the individual's use in prostitution;
 8      (6)  Blackmail;
 9      (7)  Extortion or claims of indebtedness;
10      (8)  Threat of legal complaint or report of delinquency;
11      (9)  Threat to interfere with parental rights or
12           responsibilities, whether by judicial or administrative
13           action or otherwise;
14     (10)  Promise of legal benefit, such as posting bail,
15           procuring an attorney, protecting from arrest, or
16           promising unionization;
17     (11)  Promise of financial rewards;
18     (12)  Promise of marriage;
19     (13)  Restraining speech or communication with others, such
20           as exploiting a language difference or interfering with
21           the use of mail, telephone, or money;
22     (14)  Isolating an individual from others;

Page 6                                                     
                                     S.B. NO.           616

 1     (15)  Exploiting a condition of developmental disability,
 2           cognitive limitation, affective disorder, or substance
 3           dependency;
 4     (16)  Taking advantage of lack of intervention by child
 5           protection agencies;
 6     (17)  Exploiting victimization by previous sexual abuse or
 7           battering;
 8     (18)  Exploiting pornographic performance;
 9     (19)  Interfering with opportunities for education or skills
10           training;
11     (20)  Destroying property;
12     (21)  Restraining movement; or
13     (22)  Exploiting needs for food, shelter, safety, affection,
14           or intimate or marital relationships.
15         -4 Damages.  A person entitled to bring an action under
16 section     -3 may recover all of the following damages:
17      (1)  Economic damages, including the cost of treatment and
18           rehabilitation, medical expenses, loss of economic or
19           educational potential, loss of productivity,
20           absenteeism, support expenses, loss due to accident or
21           injury, and any other pecuniary loss proximately caused
22           by coercion into prostitution;

Page 7                                                     
                                     S.B. NO.           616

 1      (2)  Noneconomic damages, including physical and emotional
 2           pain and suffering, physical impairment, emotional
 3           distress, mental anguish, disfigurement, loss of
 4           enjoyment, loss of companionship, services, and
 5           consortium, and other nonpecuniary losses proximately
 6           caused by coercion into prostitution;
 7      (3)  Exemplary damages;
 8      (4)  Reasonable attorney's fees; and
 9      (5)  Costs of suit, including reasonable expenses for expert
10           testimony.
11         -5 Joinder of parties.(a)  In the discretion of the
12 court, two or more persons may join in one action under this
13 chapter as plaintiffs if their respective actions relate to an
14 individual who engages in promoting prostitution by coercion.
15      (b)  In the discretion of the court, two or more persons may
16 be joined in one action under this chapter as defendants if those
17 persons are liable to at least one plaintiff.
18      (c)  A plaintiff need not be interested in obtaining and a
19 defendant need not be interested in defending against all of the
20 relief demanded.  Judgment may be given for one or more
21 plaintiffs according to their respective rights to relief and
22 against one or more defendants according to their respective

Page 8                                                     
                                     S.B. NO.           616

 1 liabilities.
 2         -6 Effect of criminal conviction.(a)  A person
 3 against whom recovery is sought who has a final criminal
 4 conviction pursuant to section 712-1202(1)(a) shall be estopped
 5 from denying the promotion of prostitution by coercion.  Such a
 6 conviction creates a rebuttable presumption that the person
 7 promoted prostitution by coercion during the two years preceding
 8 the date of an act giving rise to a conviction.
 9      (b)  The absence of a criminal conviction of a person
10 against whom recovery is sought does not bar an action against
11 that person under this chapter.
12         -7 Statute of limitations.(a)  A claim under this
13 chapter may not be brought against a person more than four years
14 after an act of promoting prostitution by coercion by that
15 person.
16      (b)  The limitation period provided for in this chapter is
17 tolled:
18      (1)  During the minority of the individual who engages in
19           prostitution; or
20      (2)  Any time there is a criminal offense investigation
21           being actively conducted against the defendant by a
22           governmental agency or there is a criminal offense

Page 9                                                     
                                     S.B. NO.           616

 1           charge, information, or indictment pending against the
 2           defendant.
 3         -8 Stay of action.  On motion by a governmental agency
 4 involved in an investigation or prosecution for promoting
 5 prostitution, an action brought under this chapter shall be
 6 stayed until the completion of the criminal investigation or
 7 prosecution that gave rise to the motion for a stay of the
 8 action.
 9         -9 Other remedies preserved.  The remedies provided
10 under this chapter do not affect the right of any person to bring
11 an action or use any remedy available under other law, including
12 common law, to recover damages arising out of the use of the
13 individual in prostitution or the coercion incident to the
14 individual being used in prostitution; nor does this chapter
15 limit or restrict the liability of any person under other law."
16      SECTION 3.  This Act does not affect rights and duties that
17 matured, penalties that were incurred, and proceedings that were
18 begun, before its effective date.
19      SECTION 4.  If any provision of this Act or the application
20 of any provision to any person or circumstance is held invalid,
21 the remainder of this Act and the application of such provision
22 to any other person or circumstance shall not be affected by that
23 invalidation.

Page 10                                                    
                                     S.B. NO.           616

 1      SECTION 5.  This Act shall take effect upon its approval.
 3                           INTRODUCED BY: ________________________