PART I. PROSTITUTION AND PROMOTING PROSTITUTION

 

Cross References

 

  Liability for coercion into prostitution, see chapter 663J.

 

§712-1200  Prostitution.  (1)  A personcommits the offense of prostitution if the person engages in, or agrees oroffers to engage in, sexual conduct with another person for a fee.

(2)  As used in subsection (1), "sexualconduct" means "sexual penetration," "deviate sexualintercourse," or "sexual contact," as those terms are defined insection 707-700.

(3)  Prostitution is a petty misdemeanor.

(4)  A person convicted of committing theoffense of prostitution shall be sentenced as follows:

(a) For the first offense, when the court has notdeferred further proceedings pursuant to chapter 853, a mandatory fine of $500and the person may be sentenced to a term of imprisonment of not more thanthirty days or probation; provided that in the event the convicted persondefaults in payment of the $500 fine, and the default was not contumacious, thecourt may sentence the person to perform services for the community asauthorized by section 706-605(1).

(b) For any subsequent offense, a mandatory fine of$500 and a term of imprisonment of thirty days or probation, withoutpossibility of deferral of further proceedings pursuant to chapter 853 andwithout possibility of suspension of sentence.

(c) For the purpose of this subsection, if the courthas deferred further proceedings pursuant to chapter 853, and notwithstandingany provision of chapter 853 to the contrary, the defendant shall not beeligible to apply for expungement pursuant to section 831-3.2 until four yearsfollowing discharge.  A plea previously entered by a defendant under section853-1 for a violation of this section shall be considered a prior offense. When the court has ordered a sentence of probation, the court may impose as acondition of probation that the defendant complete a course of prostitutionintervention classes; provided that the court may only impose such conditionfor one term of probation.

(5)  This section shall not apply to any memberof a police department, a sheriff, or a law enforcement officer acting in thecourse and scope of duties. [L 1972, c 9, pt of §1; am L 1981, c 110, §1; am L1986, c 314, §§73, 74; am L 1990, c 204, §1; am L 1993, c 130, §1; am L 1998, c177, §2]

 

COMMENTARY ON §712-1200

 

  History has proven that prostitution is not going to beabolished either by penal legislation nor the imposition of criminal sanctionsthrough the vigorous enforcement of such legislation.  Yet the trend of modernthought on prostitution in this country is that "public policy"demands that the criminal law go on record against prostitution.[1]  Definingthis "public policy" is a difficult task.  Perhaps it more correctlyought to be considered and termed "public demand"--a widespreadcommunity attitude which the penal law must take into account regardless of thequestionable rationales upon which it is based.

  A number of reasons have been advanced for the suppression ofprostitution, the most often repeated of which are: "the prevention ofdisease, the protection of innocent girls from exploitation, and the dangerthat more sinister activities may be financed by the gains fromprostitution."[2]  These reasons are not convincing.  Venereal disease isnot prevented by laws attempting to suppress prostitution.  If exploitationwere a significant factor, the offense could be dealt with solely in terms ofcoercion.  Legalizing prostitution would decrease the prostitute's dependenceupon and connection with the criminal underworld and might decrease the dangerthat "organized crime" might be financed in part by criminallycontrolled prostitution.

  Our study of public attitude in this area revealed thewidespread belief among those interviewed that prostitution should besuppressed entirely or that it should be so restricted as not to offend thosemembers of society who do not wish to consort with prostitutes or to beaffronted by them.  Making prostitution a criminal offense is one method ofcontrolling the scope of prostitution and thereby protecting those segments ofsociety 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 theproblem is to legalize prostitution and confine it to certain localities withina given community.  While such a proposal may exhibit foresight andpracticality, the fact remains that a large segment of society is not presentlywilling to accept such a liberal approach.  Recognizing this fact and the needfor public order, the Code makes prostitution and its associate enterprisescriminal offenses.

  This section makes the offense of prostitution contingent onthe commission by a male or female of at least one of three acts:  (1) engagingin sexual conduct with another person for a fee, or (2) agreeing to engage insexual conduct with another person for a fee, or (3) an offer to engage insexual conduct with another person for a fee.  Under this section the sex ofthe parties or prospective parties is immaterial.  It is no defense under thissection that: (a) both parties were of the same sex, or (b) the party whoaccepted, agreed to accept, or solicited the fee was a male and the party whotendered or agreed or offered to tender the fee was a female.  To emphasize theimmateriality of the sex of the parties, the phrase "he or she" isused for the actor in subsection (1), albeit under Chapter 701 "he"includes any natural person.  The word "person" is also used in orderto denote either the masculine or feminine gender as the particular casedemands.

  Subsection (2) defines "sexual conduct."  As usedin subsection (1) it is given a wide scope, meaning "sexualintercourse," "deviate sexual intercourse," or "sexualcontact," as those terms are defined in §707-700.  Subsection (3) providesthat the offense is a petty misdemeanor.

  The Code's provision on prostitution is similar to previousHawaii law insofar as it applies to both male and female prostitution.[3] However, unlike prior law, the Code does not cover indiscriminate sexualintercourse without hire.[4]  Instead of the vague word"lewdness,"[5] the Code gains some specificity by employingstatutorily defined phrases.  In the area of penalty, previous law imposed afine of not more than $1,000 or imprisonment of not more than one year, orboth.  The Code lowers these maxima to $500 and 30 days, respectively, bymaking the offense a petty misdemeanor.  This has been done on therecommendation of some judges and with the concurrence of the Honolulu PoliceDepartment.  Since the sentences presently imposed do not, in fact, generallyexceed those authorized for a petty misdemeanor, the Code is in accord withpresent practice.

 

SUPPLEMENTAL COMMENTARY ON §712-1200

 

  Act 110, Session Laws 1981, added subsection (4) to specifythe sentencing alternatives upon conviction of a defendant.  The legislaturefelt that some form of mandatory sentence was necessary to curb prostitutionand the attendant crimes of violence and crimes against property.  SenateConference Committee Report No. 15, House Conference Committee Report No. 25.

  Act 204, Session Laws 1990, amended this section to clarifythat the customer of a prostitute would also be committing the crime of prostitution. The legislature felt that buyers and sellers of illegal business transactionsshould be targets for prosecution.  House Standing Committee Report No.1205-90.

  Act 130, Session Laws 1993, amended §712-1200 to permitdeferred pleas under chapter 853 in first-offense prostitution cases and toprohibit expungement pursuant to §831-3.2 until four years followingdischarge.  The act also provided that a plea previously entered by a defendantunder §853-1 for prostitution is considered a prior offense.  ConferenceCommittee Report No. 62.

  Act 177, Session Laws 1998, amended this section to providethat any offense for which a person is convicted of prostitution isprobationable, and that the court may impose prostitution intervention classesfor only one term of probation.  The legislature found that prostitution was amulti-faceted problem which required efforts to encourage persons involved inthe sex industry to seek alternative lifestyles and employment options.  Thelegislature further found that persons involved in prostitution were often notcapable of exploring those options, and thus, those persons needed assistancein finding educational and employment opportunities that would support theirdesire to leave prostitution.  Conference Committee Report No. 155.

 

Law Journals and Reviews

 

  The Protection of Individual Rights Under Hawai`i'sConstitution.  14 UH L. Rev. 311.

  Criminal Procedure Rights Under the Hawaii Constitution Since1992.  18 UH L. Rev. 683.

  Prostitution:  Protected in Paradise?  30 UH L. Rev. 193.

 

Case Notes

 

  Evidence did not sufficiently prove whether money was givenas a gift or as a fee.  56 H. 409, 538 P.2d 1206.

  Subsection (4) eliminates power of court to grant deferredacceptance of guilty pleas.  66 H. 101, 657 P.2d 1026.

  Applicable to sex for fee in a private apartment.  66 H. 616,671 P.2d 1351.

  Prohibition is gender-neutral; even if not, section did notdeny equal protection.  67 H. 608, 699 P.2d 983.

  Deferred acceptance of no-contest plea or deferred acceptanceof guilty plea cannot be accepted under this section.  74 H. 75, 837 P.2d 776.

  Because maximum authorized term of imprisonment for aprostitution offense is thirty days, prostitution is presumptively a pettyoffense to which right to a trial by jury does not attach; defendant did nothave a right to jury trial on prostitution charges. 77 H. 162, 883 P.2d 83.

  District court imposed illegal sentences, where defendantpleaded guilty to six offenses of prostitution, pleading guilty to each offensein reverse chronological order, and defendant was sentenced, in reversechronological order, to fines of $500 for each offense.  77 H. 394, 885 P.2d1135.

  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.

  Subsection (4) does not require that a "subsequent"offense occur on a separate day.  90 H. 262, 978 P.2d 700.

  As the exception in subsection (5) would negative theprostitution offense defendant was charged with, it constituted a defense; inorder to claim the benefit of this defense, evidence that defendant fell withinthe exception must have been adduced; where defendant did not adduce any suchevidence at trial, the prosecution was not required to disprove the defenseuntil there was evidence that the defendant fell within subsection (5).  114 H.1, 155 P.3d 1102.

  In prostitution case, application of this section (2006) todefendant was not unconstitutional.  114 H. 1, 155 P.3d 1102.

  "Convicted" in subsection (4) is used inpre-sentence context, and means ascertainment of guilt.  9 H. App. 165, 827P.2d 1156.

  Whether the men responded to defendant's offers and the substanceof their responses were irrelevant under prostitution statute; defendant merelyhad to offer to engage in sex in exchange for a fee.  There was substantialevidence for trial judge to find that defendant offered to engage in sexualconduct in exchange for money.  79 H. 123 (App.), 899 P.2d 406.

  As court had no discretion under subsection (4)(b) inimposing stiffer sentence on defendant once it was established that defendantwas a subsequent prostitution offender, defendant was not required to raise agood-faith challenge to the prior conviction in order to trigger the State'sburden to prove that defendant was represented by counsel or waived suchrepresentation at the time of defendant's prior conviction.  89 H. 492 (App.),974 P.2d 1082.

  Where officer testified to a prior arrest of defendant,defendant admitted to prior arrest by officer, trial court was able to evaluateand match physical identifying information in criminal history abstract withdefendant, abstract set out the prior prostitution conviction of a defendantwith the same name, and defendant had rather unusual name for person in Hawaii,evidence was sufficient to establish beyond a reasonable doubt that defendanthad a prior prostitution conviction for purposes of subsection (4).  89 H. 492(App.), 974 P.2d 1082.

  As the First Amendment does not protect speech which is partof a course of criminal conduct, and defendant's words were an integral part ofdefendant's conduct in violating a valid statute prohibiting offers oragreements to engage in sex for a fee (this section), defendant's prosecutiondid not violate the First Amendment.  107 H. 360 (App.), 113 P.3d 811.

  This section does not proscribe constitutionally protectedconduct and was not overbroad as applied to defendant's actual conduct; thelanguage of this section also was sufficiently clear that defendant was notrequired to guess at its meaning, this section gave defendant fair warning thatdefendant was prohibited from offering or agreeing to engage in sex for a fee. 107 H. 360 (App.), 113 P.3d 811.

  Trial court's factual findings pertaining to defendant'soffer and agreement to engage in sex for $200 were not clearly erroneous andthere was sufficient evidence to support defendant's prostitution convictionunder this section.  107 H. 360 (App.), 113 P.3d 811.

 

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§711-1200 Commentary:

 

1.  Prop. Del. Cr. Code, comments at 427.

 

2.  Id.  See also, M.P.C., Tentative Draft No. 9, comments at171 (1959).

 

3.  See H.R.S. §768-51.

 

4.  See id. §768-52(1).

 

5.  See id. §768-52(2).