2022 Hawaii Revised Statutes
Title 37. Hawaii Penal Code
712. Offenses Against Public Health and Morals
712-1209.1 Commercial sexual exploitation of a minor.
§712-1209.1 Commercial sexual exploitation of a minor. (1) A person eighteen years of age or older commits the offense of commercial sexual exploitation of a minor if the person intentionally, knowingly, or recklessly:
(a) Offers or agrees to provide anything of value to a member of a police department, a sheriff, or a law enforcement officer who represents that person's self as a minor to engage in sexual conduct;
(b) Provides anything of value to a minor or third person as compensation for having engaged in sexual conduct with a minor;
(c) Agrees to provide or offers to provide anything of value to a minor or third person for the purpose of engaging in sexual conduct with a minor; or
(d) Solicits, offers to engage in, or requests to engage in sexual conduct with a minor in return for anything of value.
(2) Commercial sexual exploitation of a minor is a class B felony.
(3) In addition to any other authorized disposition, a person convicted of committing the offense of commercial sexual exploitation of a minor shall be sentenced to pay a fine of no less than $5,000.
(4) 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.
(5) The state of mind requirement for the offense under subsection (1)(b) is not applicable to the fact that the victim was a minor. A person is strictly liable with respect to the attendant circumstance that the victim was a minor; provided that the person had a reasonable opportunity to observe the victim.
(6) Consent of a minor to the sexual conduct does not constitute a defense to any offense in this section.
(7) For purposes of this section:
"Minor" means a person who is less than eighteen years of age.
"Sexual conduct" has the same meaning as in section 712-1200(2). [L 2013, c 247, §1; am L 2014, c 114, §4; am L 2021, c 68, §9]
COMMENTARY ON §712-1209.1
Act 247, Session Laws 2013, added this section, establishing the offense of solicitation of a minor for prostitution as a class C felony for offenders eighteen years of age or older. Act 247 also established a mandatory fine for a person convicted of the offense of solicitation of a minor for prostitution. The legislature found that Act 247 strengthened the laws and penalties for crimes that exploit children subjected to prostitution. Conference Committee Report No. 64.
Act 114, Session Laws 2014, amended this section by: (1) clarifying that the offense of solicitation of a minor for prostitution applies to intentional, knowing, or reckless conduct; (2) specifying that the offense applies to solicitation of a person who represents that person's self as a minor only if that person is a member of a police department, a sheriff, or a law enforcement officer; (3) increasing the minimum fine imposed on a person convicted of the offense; (4) providing an exemption for law enforcement acting in the course and scope of duties; and (5) making the offense of solicitation of a minor for prostitution a strict liability offense in regards to age. The legislature unequivocally intended the solicitation of a minor for prostitution to be a strict liability offense with regard to the age of the minor. Any specified state of mind listed therein does not apply to the age of a victim solicited under this section. Therefore, a defendant charged under this section may not defend as to the defendant's state of mind concerning the age of the victim, and will be strictly liable with respect to the age of the victim and the attendant circumstance of the victim's age. Conference Committee Report No. 41-14, Senate Standing Committee Report No. 3249.
Act 68, Session Laws 2021, amended this section to: (1) rename the offense to reference commercial sexual exploitation; (2) amend the elements for commission of the offense to specify the various types of prohibited conduct; (3) increase the grade of the offense to a class B felony; (4) provide that the compensation for engaging in sexual conduct includes anything of value; (5) repeal the requirement that $5,000 of imposed fines be credited to the general fund; (6) 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; (7) limit application of the strict liability provision to a person who had a reasonable opportunity to observe the minor; and (8) specify that consent of a minor to the sexual conduct does not constitute a defense to any offense in this section. 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.
