Honolulu, Hawaii

, 2002

RE: S.B. No. 2684

S.D. 2



Honorable Robert Bunda

President of the Senate

Twenty-First State Legislature

Regular Session of 2002

State of Hawaii


Your Committee on Judiciary, to which was referred S.B. No. 2684, S.D. 1, entitled:


begs leave to report as follows:

The purpose of this measure is to create new criminal offenses relating to child pornography.

Testimony in support of this measure was received from the Attorney General, Honolulu Police Department, Honolulu Prosecuting Attorney, Volunteer Legal Services Hawaii, Hawaii Family Forum, and a private individual. The Public Defender submitted objections as it did before the Committee on Health and Human Services on this measure. Comments were presented by the Motion Picture Association.

This measure:

(1) Addresses child pornography as it exists today with the usage of computers, by creating an offense of electronic enticement of a child in the first and second degrees;

(2) Creates an offense of promoting child abuse in the third degree for possession of child pornographic material;

(3) Creates an affirmative defense to promoting child abuse if the person depicted is more than 18 years old;

(4) Clarifies existing law relating to promoting child abuse in the first and second degrees; and

(5) Subjects to forfeiture, property used in promoting child abuse and electronic enticement of a child.

Your Committee finds that the use of the Internet to entice children into meetings has become widespread. Current laws do not specifically address using computers to communicate with minors for purposes of committing crime. This measure would close that loophole, and would allow sex offenders to be investigated and prosecuted before they commit a kidnapping or other crime. One method of investigation that has been successful in arresting sex offenders before a child is hurt has been sting operations in which the sex offender’s intended victim is actually a police officer posing as a minor in chat rooms or E-mail communications. Once the sex offender agrees to meet the child and goes to the meeting place, the offender is arrested. However, the sex offender’s defense to attempted sexual assault is often the defense of impossibility because the person posing as a child was not actually a child. Therefore, it is important to criminalize the sex offender’s predatory computer behavior, so that the offender can be prosecuted for what the offender has actually done, as opposed to what the offender may have been trying to do.

Your Committee further finds that the State must prove beyond a reasonable doubt that a pornographic image is of a child who is less than sixteen years of age to prove the crime of child abuse under the current law. Unfortunately, it is often impossible to prove the age of a child in a pornographic image, even when the child appears to be a minor. Moreover, in this age of computer generated images, pornographers sometimes use the defense that the image could have been created using several different children, or using some children and some adults. Thus, when the State attempts to prove that there is a child under sixteen years of age in the image, the defense counters that the State cannot prove that the image even includes a person because the image could have been computer generated. The State’s burden of proof under current law is to disprove the possibility that the image could have been created using more that one child. This is often impossible even when the image contains the clearly identifiable face of a child on a body performing a sexual act. The federal definition of pornography that this bill seeks to enact was designed to address these issues.

In addition, this measure carefully clarifies and defines terminology relating to child pornography to facilitate prosecution and to protect rights.

Your Committee has amended this measure by:

(1) Clarifying that the activity and material prohibited is pornographic, and that the affirmative defense applies to actual or simulated sexual conduct; and

(2) Raising the age definition of a minor from 16 to 18 under promoting child abuse in the second degree, to be congruent with child abuse in the first and third degrees.

As affirmed by the record of votes of the members of your Committee on Judiciary that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 2684, S.D. 1, as amended herein, and recommends that it pass Third Reading in the form attached hereto as S.B. No. 2684, S.D. 2.

Respectfully submitted on behalf of the members of the Committee on Judiciary,