Establishes the offense of sexual exploitation of a minor. Authorizes action against a license and property forfeiture based upon a conviction of this offense; creates offense of failure to maintain age verification records of exotic dancers. (SD2)
TWENTY-FIRST LEGISLATURE, 2002
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO SEXUAL EXPLOITATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that current Hawaii law does not address the exploitation of a minor whereby a minor is used in a fashion similar to a trade commodity in providing various lascivious services that are not covered by prostitution or sexual abuse laws. This exploitation is part of the overall sexual exploitation that is known as commercial sexual exploitation (CSE), and includes nude dancing, unlicensed massage, exotic dancing, and escort services.
The legislature further finds that substantiation of this growing problem is extensively documented in a recent study of CSE done by the University of Pennsylvania, School of Social Work. This report, entitled The Commercial Sexual Exploitation of Children in the U.S., Canada and Mexico, (Richard Estes and Neil Weiner, September 10, 2001, funded in part by the National Institute of Justice of the United States Department of Justice), states that escort services, massage services, private dancing, nude dancing, lap dancing, and similar sexually provocative activities are used to organize or lure girls into prostitution and pornography.
The report's recommendations include targeting adult sexual exploiters of children for punishment and increasing the penalties associated with CSE. The report states that "[s]ome persons involved in child trafficking were quite explicit about the "cost/benefit" ledger sheets they mentally drafted; on balance, involvement in the [CSE]...was judged to be more profitable and less risky than involvement in felony-level crimes. This imbalance is an incentive to make one's illicit money from CSE rather than drugs or other felony crimes." Notably, the report states that offenders must be given an unequivocal message that commercial sexual exploitation is impermissible, and that the victimized children must be empowered to report incidents to law enforcement and human service agencies.
Therefore, the legislature finds that the establishment and enforcement of significant criminal penalties, including securing convictions for class B felonies, are necessary in order to ensure that the sexual exploitation of children is severely punished and discouraged, and to assure the young victims of these deplorable acts that harsh penalties will be imposed upon those who participate or profit in their exploitation. The community and the State have a responsibility and obligation to protect minors from being mere sexual objects to be bought, sold, traded, or rented for sexual purposes and profit.
The purpose of this Act is to prohibit the commercial sexual exploitation of minors in activities consisting of exotic or nude dancing, escort services, and erotic or nude massage services.
SECTION 2. Chapter 707, Hawaii Revised Statutes, is amended by adding two new sections to part VI to be appropriately designated and to read as follows:
"§707- Sexual exploitation of a minor. (1) A person commits the offense of sexual exploitation of a minor if that person:
(a) Intentionally, knowingly, or recklessly engages or retains the services of a minor for money or property in consideration to:
(i) Provide, to patrons or customers of a public establishment, exotic or nude dancing or entertainment;
(ii) Provide exotic or nude dancing or entertainment in a private club or event; provided that a patron or customer of a private club or event shall be deemed to engage or retain the services of a minor for purposes of this section; or
(iii) Provide erotic or nude massage services if the person massaged or performing the massage is nude;
(b) Entices customers through advertising that offers services of a minor in any manner prohibited under paragraph (a); or
(c) Operates an escort service using minors as escorts.
(2) As used in this section:
"Exotic dancing" or "exotic entertaining" means a person performing, dancing, or entertaining in the nude, and includes patrons participating in a contest or receiving instruction in the art of nude dancing.
"Minor" means any person less than eighteen years old.
"Nude" means unclothed or in attire, including but not limited to sheer or see-through attire, so as to expose to view any portion of the pubic hair, anus, cleft of the buttocks, genitals, or any portion of the female breast below the top of the areola.
"Property" means personal property, real property, evidence of debt or contract, or any kind of article of value.
(3) Sexual exploitation of a minor is a class B felony.
(4) A conviction under this section shall subject the defendant to sections 436B-19 and 712A-4, if applicable.
§707— Failure to maintain age verification records of exotic or nude dancers. (1) A person commits the offense of failure to maintain age verification records of exotic or nude dancers if, with the intent to profit therefrom, the person knowingly provides exotic or nude dancing to patrons or customers of a public establishment or to provide exotic or nude dancing or entertainment in a private club or event, and the person:
(a) Knowingly fails to create and maintain age verification records for each exotic or nude dancer;
(b) Knowingly makes or causes to be made any false entry into the age verification records of exotic or nude dancers required by this section; or
(c) Knowingly fails to produce the age verification records of exotic or nude dancers required by this section upon request by a law enforcement officer for the purpose of verifying the age of an exotic or nude dancer.
(2) Failure to maintain age verification records of exotic or nude dancers is a class C felony.
(3) For the purposes of this section:
"Age verification records of exotic or nude dancers" means individually identifiable records pertaining to every exotic or nude dancer provided to patrons or customers of a public establishment or as entertainment in a private club or event. Such records include:
(1) Each exotic or nude dancer’s name and date of birth, as ascertained by an examination of a performer’s valid driver’s license, official state identification card, or passport by the person providing the exotic or nude dancing;
(2) A certified copy of each exotic or nude dancer’s license, official state identification card, or passport; and
(3) Any name ever used by each exotic or nude dancer including, but not limited to, maiden name, aliases, nicknames, stage names or professional names.
"Exotic or nude dancer" means a person performing, dancing, or entertaining in the nude, and includes patrons participating in a contest or receiving instruction in nude dancing.
"Intent to profit" means the intent to obtain monetary gain.
"Nude" means unclothed or in attire, including but not limited to sheer or see—through attire, so as to expose to view any portion of the pubic hair, anus, cleft of the buttocks, genitals or any portion of the female breast below the top of the areola."
SECTION 3. Section 436B-19, Hawaii Revised Statutes, is amended to read as follows:
"§436B-19 Grounds for refusal to renew, reinstate or restore and for revocation, suspension, denial, or condition of licenses. In addition to any other acts or conditions provided by law, the licensing authority may refuse to renew, reinstate or restore, or may deny, revoke, suspend, or condition in any manner, any license for any one or more of the following acts or conditions on the part of the licensee or the applicant thereof:
(1) Failure to meet or maintain the conditions and requirements necessary to qualify for the granting of a license;
(2) Engaging in false, fraudulent, or deceptive advertising, or making untruthful or improbable statements;
(3) Being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, opium, or cocaine, or other drugs or derivatives of a similar nature;
(4) Practicing the licensed profession or vocation while impaired by alcohol, drugs, physical disability, or mental instability;
(5) Procuring a license through fraud, misrepresentation, or deceit;
(6) Aiding and abetting an unlicensed person to directly or indirectly perform activities requiring a license;
(7) Professional misconduct, incompetence, gross negligence, or manifest incapacity in the practice of the licensed profession or vocation;
(8) Failure to maintain a record or history of competency, trustworthiness, fair dealing, and financial integrity;
(9) Conduct or practice contrary to recognized standards of ethics for the licensed profession or vocation;
(10) Violating any condition or limitation upon which a conditional or temporary license was issued;
(11) Engaging in business under a past or present license issued pursuant to the licensing laws, in a manner causing injury to one or more members of the public;
(12) Failure to comply, observe, or adhere to any law in a manner such that the licensing authority deems the applicant or holder to be an unfit or improper person to hold a license;
(13) Revocation, suspension, or other disciplinary action by another state or federal agency against a licensee or applicant for any reason provided by the licensing laws or this section;
(14) Criminal conviction, whether by nolo contendere or otherwise, of a penal crime directly related to the qualifications, functions, or duties of the licensed profession or vocation;
(15) Failure to report in writing to the licensing authority any disciplinary decision issued against the licensee or the applicant in another jurisdiction within thirty days of the disciplinary decision;
(16) Employing, utilizing, or attempting to employ or utilize at any time any person not licensed under the licensing laws where licensure is required; [
(17) Conviction under section 707- ; or
(17)] (18) Violating this chapter, the applicable licensing laws, or any rule or order of the licensing authority."
SECTION 4. Section 712A-4, Hawaii Revised Statutes, is amended to read as follows:
"§712A-4 Covered offenses. Offenses for which property is subject to forfeiture under this chapter are:
(a) All offenses which specifically authorize forfeiture;
(b) Murder, kidnapping, gambling, criminal property damage, robbery, bribery, extortion, theft, unauthorized entry into motor vehicle, burglary, money laundering, trademark counterfeiting, insurance fraud, promoting a dangerous, harmful, or detrimental drug, or commercial promotion of marijuana, which is chargeable as a felony offense under state law;
(c) The manufacture, sale, or distribution of a controlled substance in violation of chapter 329, promoting detrimental drugs or intoxicating compounds, promoting pornography, promoting pornography for minors, sexual exploitation of a minor, or promoting prostitution, which is chargeable as a felony or misdemeanor offense, but not as a petty misdemeanor, under state law; and
(d) The attempt, conspiracy, solicitation, coercion, or intimidation of another to commit any offense for which property is subject to forfeiture."
SECTION 5. If any provision of this Act or its application to any person or circumstance is held invalid by a court of competent jurisdiction, the invalidity does not affect other provisions or applications of this Act, and to this end the provisions of this Act are severable.
SECTION 6. Statutory material to be repealed is bracketed and stricken; provided that this section shall not apply to section 1 of this Act. New statutory material is underscored.
SECTION 7. This Act shall take effect upon its approval.