2022 Hawaii Revised Statutes
Title 37. Hawaii Penal Code
712. Offenses Against Public Health and Morals
712-1209.6 Prostitution; motion to vacate conviction.
§712-1209.6 Prostitution; motion to vacate conviction. (1) A person convicted of committing the offense of prostitution under section 712-1200, loitering for the purpose of engaging in or advancing prostitution under section 712-1206(2), street prostitution and commercial sexual exploitation in designated areas under section 712-1207(1)(a) or (2)(a), or convicted of a lesser offense when originally charged with a violation of section 712-1200, 712-1206(2), or 712-1207(1)(a) or (2)(a), may file a motion to vacate the conviction if the defendant is not subsequently convicted of any offense under the Hawaii Penal Code within three years after the date of the original conviction.
(2) The court shall hold a hearing on a motion filed under this section to review the defendant's record over the three years after the date of the original conviction under section 712-1200, 712-1206(2), or 712-1207(1)(a) or (2)(a) or conviction of a lesser offense when originally charged with a violation of any of those sections, and if the court finds that the defendant has not been convicted of any offense under the Hawaii Penal Code within this three year period, the court shall vacate the conviction. L 2012, c 216, §2; am L 2015, c 35, §29; am L 2016, c 206, §16; am L 2019, c 176, §2; am L 2021, c 68, §11
COMMENTARY ON §712-1209.6
Act 216, Session Laws 2012, added this section to: (1) authorize a person convicted of committing the offense of prostitution to file a motion to vacate the conviction under certain circumstances; and (2) establish procedures for the motion to vacate the conviction. The legislature found that human trafficking, consisting of the subjugation, recruitment, harboring, or transportation of people for the purpose of forced labor or services, or commercial sexual exploitation, was one of the fastest growing criminal industries. Act 216 would assist in combating human trafficking by allowing trafficking victims who were forced into prostitution to file a motion to have their prostitution convictions vacated from their records. Conference Committee Report No. 109-12.
Act 35, Session Laws 2015, amended subsection (1)(b) by changing: (1) the phrase "severe form of trafficking" to "severe form of trafficking in persons"; and (2) "title 22 United States Code section 7102(13)" to "title 22 United States Code section 7102(9)(A)."
Act 206, Session Laws 2016, amended this section to conform to amendments made to other sections in the Hawaii Revised Statutes by Act 206. Senate Standing Committee Report No. 3450.
Act 176, Session Laws 2019, amended this section to permit persons convicted of certain prostitution offenses to file a motion to vacate the conviction if the defendant is not convicted of another offense under the Penal Code within three years of the original prostitution conviction. The legislature found that sex trafficking victims are often misidentified and criminalized by law enforcement and that, although the existing law allowed sex trafficking victims to vacate prostitution convictions by proving their victimization within six years from the time that victimization ceased, trafficking victims may face significant challenges in disclosing and proving their victimization. The legislature noted that persons who have been convicted of certain prostitution offenses, regardless of whether they have been or can allege that they were victims of sex trafficking, should be able to vacate their convictions after a reasonable period of three years from the date of conviction; provided that these persons have maintained a clean record free of convictions under the Penal Code during that period of time. The legislature found that by helping trafficking victims to clear their criminal records, Act 176 would support victims in reintegrating into society and finding non-exploitative employment, bring about substantial cultural reform, and send a strong message that a person's participation in prostitution is often complex and should not bar access to resources, safety, and compassion. Conference Committee Report No. 53, Senate Standing Committee Report No. 786.
Act 68, Session Laws 2021, made conforming amendments to this section to reflect the following amendments made under Act 68: (1) the removal from the scope of the offense of prostitution under §712-1200, of the act of paying another to engage in sexual conduct, which was reestablished under Act 68 as the separate offense of commercial sexual exploitation; and (2) the renaming of the offense under §712-1207 to "street prostitution and commercial sexual exploitation." 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.
