HOUSE OF REPRESENTATIVES

H.B. NO.

1940

TWENTY-FIFTH LEGISLATURE, 2010

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to crime.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  The legislature finds that human trafficking, for the purposes of both sexual and labor exploitation, is a growing problem around the world and in Hawaii.  In February 2009, the United Nations Office on Drugs and Crime issued a report regarding human trafficking, "Global Report on Trafficking in Persons" (Report).  According to the Report, the most common form of human trafficking (seventy-nine per cent) is for sexual exploitation.  The victims of sexual exploitation are predominantly women and girls.  The second most common form of human trafficking is for forced labor purposes (eighteen per cent), although this form of trafficking may be underestimated because it is detected and reported less frequently than trafficking for sexual exploitation.

     Most human traffickers exploit people of the same nationality.  Worldwide, an estimated four million to twenty-seven million people are trafficked and almost twenty per cent of all trafficking victims are children.  In 2004, it was estimated that 14,500 to 17,500 international victims were being trafficked into the United States each year.  Human trafficking is a multibillion-dollar-a-year business, surpassing illegal arms dealing and ranking as the second largest criminal industry in the world behind drug dealing, according to the United States Department of Health and Human Services' Administration for Children and Families.  Total yearly profits generated by the human trafficking industry are estimated to be $32,000,000,000, according to United Nations experts.

     The United States federal government has sought to combat the human trafficking problem, adopting the Trafficking Victims Protection Act of 2000, and subsequently amending the Act in 2003 (the Trafficking Victims Protection Reauthorization Act of 2003), 2005 (the Trafficking Victims Protection Reauthorization Act of 2005), and 2008 (the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008) to combat this modern form of slavery.  The initial Act is the cornerstone of the national effort to eliminate human trafficking.  The Trafficking Victims Protection Reauthorization Acts of 2003 and 2005 expanded the protection and rights of trafficking victims to include domestic trafficked victims (American citizens) and increased federal spending on the effort to combat trafficking.

     While the federal Acts are crucial to combating in human trafficking, these laws focus on the international dimension of trafficking.  They address organized networks specializing in the illicit transport of human beings across political and geographical boundaries, and focus on large-volume traffickers designated as "significant" traffickers because they play a significant role in severe forms of trafficking.  Because federal officials cannot police the enormous volume of immigration and trafficking issues alone, they have urged the individual states to participate.  According to the United States Department of State's Trafficking in Persons Report (2009), as of April 2009, forty-two states have passed anti-trafficking laws.  Hawaii remains one of eight states without state laws defining human trafficking.

     Hawaii is not immune to trafficking in persons.  Hawaii's busy tourist, construction, and agricultural industries, large military population, and location as a Pacific transit point make it a high-risk region for labor trafficking.  Men and women are brought to Hawaii and forced to work as modern-day slaves for months or years before they either escape or are rescued and often, once they are discovered, these persons are not recognized as victims, and are often arrested or deported.  Men who are trafficked into Hawaii are often subject to forced labor, including for use in construction, agriculture, landscaping, and fishing.

     Sexual human trafficking is also a problem in Hawaii.  Honolulu is recognized as a place as having a considerable amount of child sex-trafficking by the Federal Bureau of Investigation, which prompted its Innocence Lost National Initiative to include Honolulu as one of twenty-nine cities subject to a three-day law enforcement action, Operation Cross Country II, that is aimed at combating sex trafficking of children.  Hawaii is also plagued by trafficking of adults.  Women are commonly trafficked into Hawaii internationally and nationally to work in the sex industry, in strip clubs, massage parlors, brothels, and for street prostitution.  They are also trafficked here as mail-order brides for the purpose of domestic servitude. 

     Victims trafficked into Hawaii sometimes take out exorbitant "loans" to pay their "recruiters", who have deceived them with regards to the type of work they will do and the amount of payment they will receive.  This debt bondage serves to keep the victim enslaved in the futile attempt to work to repay a debt that can never be repaid.  Victims are promised good living conditions and the opportunity to earn money to support their families.  Once they arrive in Hawaii, however, their passports or other identification are confiscated, and they are threatened and often physically and sexually assaulted, are forced to live and work in substandard conditions, and are paid nominal or no wages at all.

     Because there is no specific crime of sexual human trafficking in Hawaii, identifying individuals who are at high risk of becoming trafficking victims is difficult.  Local teens may be especially vulnerable to sexual human trafficking, particularly when there is a history of physical or sexual abuse that causes them to run away from home and attempt to survive on the streets.  These teens may turn to prostitution to feed themselves, which essentially marks them as candidates for traffickers.  Cities such as Dallas, Texas, consider teens who have run away from home more than three times to be "high risk victims", because of the high probability of their being recruited and trafficked out of the jurisdiction.  In Honolulu in 2008, an estimated one hundred eighty teenagers had run away four or more times.  Lack of human trafficking legislation makes it difficult to identify and provide these high risk victims with services that would hinder their recruitment into trafficking rings.

     The legislature finds that additional protections must be put in place to address this growing problem in Hawaii.  Existing laws criminalize certain conduct relating to aspects of human trafficking, but do not address the trafficking problem holistically, directly, or completely, and do not protect the victims of human traffickers.  Offenses such as extortion or promoting prostitution do not address the evil of human trafficking or the conduct of transporting, recruiting, enticing, or harboring persons for involuntary slavery purposes. 

     Additionally, the penalties for existing offenses do not adequately or appropriately address the harms done by human traffickers; nor do current penalties for existing offenses deter similar conduct in the future or warn potential victims of the identities of human traffickers.  Human traffickers, charged under existing criminal statutes, are not necessarily required to compensate their victims for work performed by their victims.  Traffickers using a business as a cover for their practices do not suffer revocation of their business licenses.  These types of penalties are reasonably related to the trafficking conduct and should be instituted. 

     Moreover, sexual human traffickers, who compel their victims into prostitution through intimidation, fear, and fraud, are not subject to registration and notification procedures as sex offenders, even though their victims, like the victims of sex offenders, bear continuing stigma and long-term consequences.  The legislature finds that some measure of protection to the public is required by ensuring the release of relevant information concerning the presence of sexual human traffickers in the community. 

     Further, the deferred acceptance of guilty or no contest plea program may be available to these traffickers under existing law.  While the purpose of this program is to give a defendant the opportunity to keep his or her record free of a criminal conviction in cases involving first time, accidental, or situational offenders, the conduct of human trafficking is so egregious, the legislature finds that this "second chance" program should not be available to human traffickers.  This will better address and rectify the harms done by human traffickers.

     The legislature finds that there may be some who are concerned that constitutional obstacles, such as due process, equal protection, or double jeopardy, may obstruct the prosecution of human trafficking offenses herein, where elements of proof essential to the human trafficking offenses are shared with elements of proof essential to other offenses.  However, these concerns are misplaced since the existing criminal offenses touch on some, but not all, of the essential elements comprising human trafficking.

     One such argument is the "Modica" issue.  In a situation where the human trafficking offense is chargeable as a felony and an existing offense is chargeable as a misdemeanor, then the ability of the prosecution to choose between a felony or misdemeanor charge for similar conduct could raise due process and equal protection arguments, as argued by the defendant in State v. Modica, 58 Haw. 249, 567 P.2d 420 (1977).  Such arguments are not applicable to the human trafficking offenses created by this Act, because the elements for these offenses are not exactly the same as the underlying offenses described as "means" in the human trafficking offenses.  Nor are the elements of the human trafficking offenses exactly the same as similar offenses, such as promoting prostitution.  Because the elements of the human trafficking offenses and the existing offenses merely overlap, no due process or equal protection violations exist under Modica.  As explained by the Hawaii supreme court in Modica, where the same act committed under the same circumstances is punishable either as a felony or as a misdemeanor, under either of two statutory provisions, and the elements of proof essential to either conviction are exactly the same, a conviction under the felony statute would constitute a violation of the defendant's rights to due process and the equal protection of the laws.  However, where elements of two statutes merely overlap, but are not exactly the same, then there is no defense to an indictment under one statute that the accused might have been charged under another. 

     Another concern is that because an underlying means for controlling or gaining control over a trafficking victim constitutes its own offense, such as kidnapping or extortion, the underlying offense would be a lesser included offense of the trafficking statute and, therefore, imposing punishment under both statutes would be impermissible "multiple punishments" under the double jeopardy clause of the Hawaii State Constitution.  However, as the Hawaii supreme court stated recently in State v. Feliciano, 107 Hawai'i 469, 115 P.3d 648 (2005), the double jeopardy clause is primarily a restriction on the courts and the prosecution, not the legislature.  The legislature has the power to define crimes and fix punishments.  The legislature may authorize multiple punishments through amending section 701-109(1), Hawaii Revised Statutes, or through expressing a legislative intent to authorize multiple punishments.  See State v. Brantley, 99 Hawai'i 463, 469, 56 P.3d 1252, 1258 (2002) (concluding that a defendant could be convicted of both use of a firearm in the commission of a separate felony and the separate felony, despite the statutory prohibition in section 701-109(1), Hawaii Revised Statutes, where the legislative history of the two offenses showed that the legislature intended to allow convictions for both offenses).  Here, the legislature clearly and unequivocally intends that the relevant human trafficking offense and any underlying offense be punished separately as separate offenses.

     The purpose of this Act is to comprehensively address the growing problem of sexual human trafficking and labor trafficking. 

     SECTION 2.  Chapter 707, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART    .  HUMAN TRAFFICKING

     §707-A  Sexual human trafficking in the first degree.  (1)  A person commits the offense of sexual human trafficking in the first degree if the person, with the intent to advance prostitution or sexually-explicit activity, transports, or aids, assists, or causes to be transported, any person into, through, within, across, or out of the State, or recruits, entices, or harbors:

    (a)   Any person for the purpose of engaging in prostitution or a sexually-explicit activity that will be obtained, maintained, or advanced by any of the following means:

         (i)  Extortion as defined in section 707-764;

        (ii)  Kidnapping as defined in section 707-720;

       (iii)  Unlawful imprisonment as defined in section 707‑721 or 707-722;

        (iv)  Force, threat, or intimidation;

         (v)  Deception, as defined in section 708-800, or fraud, which means making material false statements, misstatements, or omissions to induce or maintain the person to engage or continue to engage in prostitution or a sexually-explicit activity;

        (vi)  Requiring that prostitution or a sexually-explicit activity be performed to retire, repay, or service a real or purported debt, as in a debt bondage situation;

       (vii)  Causing or threatening to cause financial harm to any person;

      (viii)  Facilitating or controlling the trafficked person's access to an addictive controlled substance;

        (ix)  Withholding any of the trafficked person's government-issued identification document with the intent to impede the movement of the trafficked person; or

         (x)  Using any scheme, plan, or pattern intended to cause the trafficked person to believe that if the trafficked person did not perform the prostitution, then the trafficked person or another person would suffer serious harm or physical restraint; or

    (b)   Any person under the age of eighteen for the purpose of engaging in prostitution or in a sexually-explicit activity.

     (2)  Sexual human trafficking in the first degree is a class A felony; provided that, if the trafficked person was under the age of eighteen at the time of the offense, the defendant shall be sentenced to a mandatory minimum term of imprisonment without the possibility of parole, the length of which shall be as follows:

    (a)   Where the trafficked person was sixteen or seventeen years old – ten years;

    (b)   Where the trafficked person was thirteen, fourteen, or fifteen years old – fifteen years; and

    (c)   Where the trafficked person was twelve years old or younger – twenty years.

     §707-B  Sexual human trafficking in the second degree.  (1)  A person commits the offense of sexual human trafficking in the second degree if the person manages, supervises, controls, or owns, either alone or in association with others, a business or enterprise that recruits, entices, or maintains a person who, having been transported into, through, within, across, or out of the State:

    (a)   Is engaging or will engage in prostitution that has been or will be obtained, maintained, or advanced by any of the means specified in section 707-A(1)(a); or

    (b)   Is engaging or will engage in prostitution or in a sexually-explicit activity; provided that this paragraph shall apply only where the trafficked person is under the age of eighteen;

knowing, or in reckless disregard of the risk, that the person has been transported into, through, within, across, or out of the State, and that the person has been subject to any of the methods set forth in section 707-A(1)(a), for a violation under paragraph (a), or is under the age of eighteen, for a violation under paragraph (b).

     (2)  Sexual human trafficking in the second degree is a class B felony; provided that, if the trafficked person was under the age of eighteen at the time of the offense, then sexual human trafficking in the second degree is a class A felony and the defendant shall be sentenced to a mandatory minimum term of imprisonment without the possibility of parole, the length of which shall be as follows:

    (a)   Where the trafficked person was sixteen or seventeen years old – five years;

    (b)   Where the trafficked person was thirteen, fourteen, or fifteen years old – seven years, six months; and

    (c)   Where the trafficked person was twelve years old or younger – ten years.

     §707-C  Sexual human trafficking in the third degree.  (1)  A person commits the offense of sexual human trafficking in the third degree if the person pays, or agrees or offers to pay, a fee for the purpose of engaging in sexual conduct with another person knowing or in reckless disregard of the risk that:

    (a)   The other person has been transported into, through, within, across, or out of the State, or has been recruited, enticed, or harbored for the purpose of engaging in prostitution; and

    (b)   The other person is under the age of eighteen or the sexual conduct has been obtained, maintained, or advanced by any of the means specified in section 707‑A(1)(a).

     (2)  Sexual human trafficking in the third degree is a class C felony; provided that, if the trafficked person was under the age of eighteen at the time of the offense, the defendant shall be sentenced to a mandatory minimum term of imprisonment without the possibility of parole, the length of which shall be as follows:

    (a)   Where the trafficked person was sixteen or seventeen years old – three years;

    (b)   Where the trafficked person was thirteen, fourteen, or fifteen years old – four years; and

    (c)   Where the trafficked person was twelve years old or younger – five years.

     §707-D  Labor trafficking in the first degree.  (1)  A person commits the offense of labor trafficking in the first degree if the person transports, or aids, assists, or causes to be transported, any person into, through, within, across, or out of the State, or recruits, entices, or harbors any person, for the purpose of facilitating the obtaining, maintaining, or advancing of the trafficked person's labor or services by any of the following means:

    (a)   Extortion as defined in section 707-764;

    (b)   Kidnapping as defined in section 707-720;

    (c)   Unlawful imprisonment as defined in section 707‑721 or 707-722;

    (d)   Force, threat, or intimidation;

    (e)   Deception, as defined in section 708-800, or fraud, which means making material false statements, misstatements, or omissions to induce or maintain the person to engage or continue to engage in the labor or services;

    (f)   Requiring that the labor or services be performed to retire, repay, or service a real or purported debt, as in a debt bondage situation;

    (g)   Causing or threatening to cause financial harm to any person;

    (h)   Facilitating or controlling the trafficked person's access to an addictive controlled substance;

    (i)   Withholding any of the trafficked person's government-issued identification document with the intent to impede the movement of the trafficked person; or

    (j)   Using any scheme, plan, or pattern intended to cause the trafficked person to believe that if the trafficked person did not perform the labor or services, then the trafficked person or another person would suffer serious harm or physical restraint;

provided that reference to the means listed in paragraphs (a) through (j) shall not apply to the actions of a parent or guardian who requires the parent or guardian's child to perform common household chores under threat of lawful parental discipline.

     (2)  Labor trafficking in the first degree is a class A felony; provided that, if the trafficked person was under the age of eighteen at the time of the offense, the defendant shall be sentenced to a mandatory minimum term of imprisonment without the possibility of parole, the length of which shall be as follows:

    (a)   Where the trafficked person was sixteen or seventeen years old – ten years;

    (b)   Where the trafficked person was thirteen, fourteen, or fifteen years old – fifteen years; and

    (c)   Where the trafficked person was twelve years old or younger – twenty years.

     (3)  In addition to any other penalty, and notwithstanding a trafficked person's failure to request restitution under section 706-646(2), the court shall order that restitution be paid to the trafficked person, consisting of an amount that is the greater of:

    (a)   The gross income or value to the defendant of the trafficked person's labor or services; or

    (b)   The value of the trafficked person's labor or services, as guaranteed under the minimum wage provisions of chapter 387 or the Fair Labor Standards Act of 1938, P.L. 75-718, codified in title 29 United States Code sections 201 through 219, inclusive, whichever is greater.

The return of the trafficked person to the trafficked person's home country or other absence of the trafficked person from the jurisdiction shall not relieve the defendant of the defendant's restitution obligation.

     §707-E  Labor trafficking in the second degree.  (1)  A person commits the offense of labor trafficking in the second degree if the person manages, supervises, controls, or owns, either alone or in association with others, a business or enterprise and:

    (a)   The business or enterprise engages a person who is engaging or will engage in labor or services that have been or will be obtained, maintained, or advanced by any of the means specified in section 707-D(1)(a) through (j); and

    (b)   The person knows, or recklessly disregards the risk, that the person who is engaging or will engage in labor or services has been transported into, through, within, across, or out of the State, or has been recruited, enticed, or harbored, with the intent to facilitate obtaining, maintaining, or advancing the trafficked person performance of labor or services for the purposes in paragraph (a).

     (2)  Labor trafficking in the second degree is a class B felony; provided that, if the person transported was under the age of eighteen at the time of the offense, the defendant shall be sentenced to a mandatory minimum term of imprisonment without the possibility of parole, the length of which shall be as follows:

    (a)   Where the trafficked person was sixteen or seventeen years old – five years;

    (b)   Where the trafficked person was thirteen, fourteen, or fifteen years old – seven years, six months; and

    (c)   Where the trafficked person was twelve years old or younger – ten years.

     (3)  In addition to any other penalty, and notwithstanding a trafficked person's failure to request restitution under section 706-646(2), the court shall order restitution to be paid to the trafficked person, consisting of an amount that is the greater of:

    (a)   The gross income or value to the defendant of the trafficked person's labor or services; or

    (b)   The value of the trafficked person's labor or services, as guaranteed under the minimum wage provisions of chapter 387 or the Fair Labor Standards Act of 1938, P.L. 75-718, codified in title 29 United States Code sections 201 through 219, inclusive, whichever is greater.

The return of the trafficked person to the trafficked person's home country or other absence of the trafficked person from the jurisdiction shall not relieve the defendant of the defendant's restitution obligation.

     (4)  Upon conviction of a defendant under this section, the court shall also order that any and all business licenses issued by the State be revoked for the subject business or enterprise the defendant manages, supervises, controls, or owns, either alone or in association with others; provided, however, that the court, in its discretion, may reinstate the business licenses upon petition to the court by the remaining owner or owners of the business or enterprise who were not convicted of a charge under this section if the remaining owner or owners submit proof or a certified statement under penalty of perjury that the convicted defendant is not currently and shall not in the future be involved with the subject business or enterprise in any capacity.

     §707-F  Labor trafficking in the third degree.  (1)  A person commits the offense of labor trafficking in the third degree if the person pays, or agrees or offers to pay, a fee for the purpose of obtaining the labor or services of the other person, knowing that the labor or services have been obtained, maintained, or advanced by any of the means specified in section 707-D(1)(a) through (j).

     (2)  Labor trafficking in the third degree is a class C felony; provided that, if the person transported was under the age of eighteen at the time of the offense, the defendant shall be sentenced to a mandatory minimum term of imprisonment without the possibility of parole, the length of which shall be as follows:

    (a)   Where the trafficked person was sixteen or seventeen years old – three years;

    (b)   Where the trafficked person was thirteen, fourteen, or fifteen years old – four years; and

    (c)   Where the trafficked person was twelve years old or younger – five years.

     (3)  In addition to any other penalty, and notwithstanding a trafficked person's failure to request restitution under section 706-646(2), the court shall order that restitution be paid to the trafficked person, consisting of an amount that is the greater of:

    (a)   The gross income or value to the defendant of the trafficked person's labor or services; or

    (b)   The value of the trafficked person's labor or services, as guaranteed under the minimum wage provisions of chapter 387 or the Fair Labor Standards Act of 1938, P.L. 75-718, codified in title 29 United States Code sections 201 through 219, inclusive, whichever is greater.

The return of the trafficked person to the trafficked person's home country or other absence of the trafficked person from the jurisdiction shall not relieve the defendant of the defendant's restitution obligation.

     §707-G  Definitions; defenses; multiple sentences.  (1)  For purposes of this part:

     "Enticement" includes the use of a computer or any other electronic device to intentionally or knowingly communicate with another person, with the intent to promote or facilitate the trafficking of the other person under this part.

     "Labor" means work of economic or financial value.

     "Maintain" means, in relation to labor, services, prostitution, or sexually-explicit activity, to secure continued performance thereof, regardless of any initial agreement on the part of the trafficked person to perform such labor, service, prostitution, or sexually-explicit activity.

     "Nude" shall have the same meaning as defined in section 712-1210.

     "Services" means a relationship between a person and the actor in which the person performs activities under the supervision of or for the benefit of the actor or a third party.

     "Sexually-explicit activity" means engaging in activity as an erotic or nude massager or exotic or nude dancer, as defined by section 712-1210, or in the production of child pornography, as defined in section 707-750.

     "Trafficked person" or "trafficking victim" means a person who is transported for the purposes described in this part.

     "Transported" means moved any distance, however slight, and shall not require proof of any specific minimum distance.

     (2)  It shall not be a defense to a charge under this part that, notwithstanding sections 702-204, 702-212, 702-213, and 702‑218, the actor was mistaken as to or unaware of the age of the trafficked person, or that the trafficked person or another person reassured the actor regarding the trafficked person's majority.  For purposes of this part, an actor's negligence or recklessness as to the age of the trafficked person shall be sufficient to prove the requisite state of mind.

     (3)  It shall be a complete defense to a charge under this part that:

    (a)   The actor is the victim of the very conduct that is the basis of the criminal charge.  For purposes of this part, a trafficked person shall not be deemed to have aided or assisted in the trafficked person's own trafficking; or

    (b)   The trafficked person is required to perform labor or services, such as "chores" in a correctional facility or as a punishment for a crime for which the trafficked person has been duly convicted;

     (4)  Any means specified in section 707A-(1)(a) or section 707-D(1)(a) through (j) that is a separate criminal offense shall not constitute a lesser included offense of the human trafficking offense, and the defendant may be charged and prosecuted for each offense.  Notwithstanding section 701‑109(a), a conviction and sentence for human trafficking shall be in addition to, and not in lieu of, a conviction and sentence for any of the means specified in section 707-A(1)(a) or section 707-D(1)(a) through (j) that constitute a separate offense; provided that the sentence imposed under this part may run concurrently with or consecutive to the sentence for the means specified in section 707‑A(1)(a) or section 707-D(1)(a) through (j).

     §707-H  Rights of alleged trafficking victims.  (1)  An alleged trafficking victim under this part:

    (a)   May not be detained in a facility that is inappropriate to the trafficking victim's status as a crime victim;

    (b)   May not be jailed, fined, or otherwise penalized due to having been the victim of the trafficking offense; and

    (c)   Shall be provided protection if the trafficking victim's safety is at risk or if there is danger of additional harm by recapture of the trafficking victim by the person who allegedly committed the offense, including:

         (i)  Taking measures to protect the alleged victim and the victim's family members from intimidation and threats of reprisals and reprisals from the person who allegedly committed the offense or the person's agent; and

        (ii)  Ensuring that the names and identifying information of the alleged trafficking victim and the victim's family members are not disclosed to the public.

     (2)  Not more than fifteen days after the date a law enforcement agency first reasonably becomes aware of an alleged trafficking victim under this part, the law enforcement agency shall provide the alleged trafficking victim with a completed Declaration of Law Enforcement Officer for Victim of Trafficking in Persons (LEA Declaration, form I-914 Supplement B) in accordance with 8 C.F.R. 214.11(f)(1).  However, if the law enforcement agency finds that the grant of an LEA Declaration is not appropriate for the alleged victim, then not more than fifteen days after the date the agency makes the finding, the law enforcement agency shall provide the alleged trafficking victim with a letter explaining the grounds for denial of the LEA Declaration.  After receiving a denial letter, the alleged trafficking victim may submit additional evidence to the law enforcement agency.  If the alleged victim submits additional evidence, the law enforcement agency shall reconsider the denial of the LEA Declaration not more than seven days after the date the agency receives the additional evidence."

     SECTION 3.  Section 351-32, Hawaii Revised Statutes, is amended to read as follows:

     "§351-32  Violent crimes.  The crimes to which part III of this chapter applies are the following and no other:

     (1)  Murder in the first degree (section 707‑701);

     (2)  Murder in the second degree (section 707‑701.5);

     (3)  Manslaughter (section 707‑702);

     (4)  Negligent homicide in the first degree (section 707‑702.5);

     (5)  Negligent homicide in the second degree (section 707‑703);

     (6)  Negligent injury in the first degree (section 707‑705);

     (7)  Negligent injury in the second degree (section 707‑706);

     (8)  Assault in the first degree (section 707‑710);

     (9)  Assault in the second degree (section 707‑711);

    (10)  Assault in the third degree (section 707‑712);

    (11)  Kidnapping (section 707‑720);

    (12)  Sexual assault in the first degree (section 707‑730);

    (13)  Sexual assault in the second degree (section 707‑731);

    (14)  Sexual assault in the third degree (section 707‑732);

    (15)  Sexual assault in the fourth degree (section 707‑733);

    (16)  Abuse of family [[]or[]] household member (section 709‑906); [and]

    (17)  Sexual human trafficking in the first degree (section 707‑A);

    (18)  Sexual human trafficking in the second degree (section 707‑B);

    (19)  Sexual human trafficking in the third degree (section 707‑C);

    (20)  Labor trafficking in the first degree (section 707‑D);

    (21)  Labor trafficking in the second degree (section 707‑E);

    (22)  Labor trafficking in the third degree (section 707‑F); and

   [(17)] (23)  Terrorism, as defined in Title 18 United States Code section 2331."

     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, sexual human trafficking, labor trafficking, 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, commercial promotion of marijuana, unlawful methamphetamine trafficking, manufacturing of a controlled substance with a child present, promoting child abuse, or electronic enticement of a child 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, 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.  Section 803-44, Hawaii Revised Statutes, is amended to read as follows:

     "§803-44  Application for court order to intercept wire, oral, or electronic communications.  The attorney general of this State, or a designated deputy attorney general in the attorney general's absence or incapacity, or the prosecuting attorney of each county, or a designated deputy prosecuting attorney in the prosecuting attorney's absence or incapacity, may make application to a designated judge or any other circuit court judge or district court judge, if a circuit court judge has not been designated by the chief justice of the Hawaii supreme court, or is otherwise unavailable, in the county where the interception is to take place, for an order authorizing or approving the interception of wire, oral, or electronic communications, and such court may grant in conformity with section 803-46 an order authorizing, or approving the interception of wire, oral, or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, if the interception might provide or has provided evidence of:

     (1)  Murder;

     (2)  Sexual human trafficking;

     (3)  Labor trafficking;

    [(2)] (4)  Kidnapping;

    [(3)] (5)  Felony criminal property damage involving the danger of bodily injury as defined in section 707‑700;

    [(4)] (6)  Distribution of dangerous, harmful, or detrimental drugs; or

    [(5)] (7)  Conspiracy to commit one or more of the above;

          or involving

    [(6)] (8)  Organized crime and any of the following felony offenses:

          (A)  Extortion;

          (B)  Bribery of a juror, of a witness, or of a police officer;

          (C)  Receiving stolen property; [and]

          (D)  Gambling; and

          (E)  Money laundering."

     SECTION 6.  Section 842-1, Hawaii Revised Statutes, is amended by amending the definitions of "organized crime" and "racketeering activity" to read as follows:

     ""Organized crime" means any combination or conspiracy to engage in criminal activity as a significant source of income or livelihood, or to violate, aid or abet the violation of criminal laws relating to prostitution, gambling, loan sharking, drug abuse, illegal drug distribution, counterfeiting, extortion, sexual human trafficking, labor trafficking, corruption of law enforcement officers or other public officers or employers.

     "Racketeering activity" means any act or threat involving, but not limited to murder, kidnapping, gambling, criminal property damage, robbery, bribery, extortion, sexual human trafficking, labor trafficking, theft or prostitution, or any dealing in narcotic or other dangerous drugs which is chargeable as a crime under state law and punishable by imprisonment for more than one year."

     SECTION 7.  Section 846E-1, Hawaii Revised Statutes, is amended by amending the definitions of "crime against minors" and "sexual offense" to read as follows:

     ""Crime against minors" excludes "sexual offenses" as defined in this section and means a criminal offense that consists of:

     (1)  Kidnapping of a minor, by someone other than a parent;

     (2)  Unlawful imprisonment in the first or second degree that involves the unlawful imprisonment of a minor by someone other than a parent;

     (3)  An act, as described in chapter 705, that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the offenses designated in paragraph (1) or (2); [or]

     (4)  A sexual human trafficking offense, as described in section 707-A, 707-B, or 707-C, when the conduct is a crime only because the victim is less than eighteen years of age; or

    [(4)] (5)  A criminal offense that is comparable to or which exceeds one of the offenses designated in paragraphs (1) through (3) or any federal, military, or out-of-state conviction for any offense that, under the laws of this State would be a crime against minors as designated in paragraphs (1) through (3).

     "Sexual offense" means an offense that is:

     (1)  Set forth in section 707-A, 707-B, 707-C, 707‑730(1)(a), 707-730(1)(b), 707-730(1)(c), 707‑730(1)(d) or (e), 707-731(1)(a), 707-731(1)(b), 707-731(1)(c), 707-732(1)(a), 707-732(1)(b), 707‑732(1)(c), 707-732(1)(d), 707-732(1)(e), 707‑732(1)(f), 707-733(1)(a), 707-733.6, 712‑1202(1)(b), or 712-1203(1)(b), but excludes conduct that is criminal only because of the age of the victim, as provided in section 707-730(1)(b), or section 707-732(1)(b) if the perpetrator is under the age of eighteen;

     (2)  An act defined in section 707-720 if the charging document for the offense for which there has been a conviction alleged intent to subject the victim to a sexual offense;

     (3)  An act that consists of:

         (A)  Criminal sexual conduct toward a minor, including but not limited to an offense set forth in section 707-759;

         (B)  Solicitation of a minor who is less than fourteen years old to engage in sexual conduct;

         (C)  Use of a minor in a sexual performance;

         (D)  Production, distribution, or possession of child pornography chargeable as a felony under section 707-750, 707-751, or 707-752;

         (E)  Electronic enticement of a child chargeable under section 707-756 or 707-757 if the offense was committed with the intent to promote or facilitate the commission of another covered offense as defined in this section; or

         (F)  Solicitation of a minor to practice prostitution;

     (4)  A criminal offense that is comparable to or that exceeds a sexual offense as defined in paragraphs (1) through (3) or any federal, military, or out-of-state conviction for any offense that under the laws of this State would be a sexual offense as defined in paragraphs (1) through (3); or

     (5)  An act, as described in chapter 705, that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the offenses designated in paragraphs (1) through (4)."

     SECTION 8.  Section 853-4, Hawaii Revised Statutes, is amended to read as follows:

     "§853-4  Chapter not applicable; when.  This chapter shall not apply when:

     (1)  The offense charged involves the intentional, knowing, reckless, or negligent killing of another person;

     (2)  The offense charged is:

         (A)  A felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person; or

         (B)  A misdemeanor or petty misdemeanor that carries a mandatory minimum sentence and that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person;

     (3)  The offense charged involves a conspiracy or solicitation to intentionally, knowingly, or recklessly kill another person or to cause serious bodily injury to another person;

     (4)  The offense charged is a class A felony;

     (5)  The offense charged is nonprobationable;

     (6)  The defendant has been convicted of any offense defined as a felony by the Hawaii Penal Code or has been convicted for any conduct that if perpetrated in this State would be punishable as a felony;

     (7)  The defendant is found to be a law violator or delinquent child for the commission of any offense defined as a felony by the Hawaii Penal Code or for any conduct that if perpetrated in this State would constitute a felony;

     (8)  The defendant has a prior conviction for a felony committed in any state, federal, or foreign jurisdiction;

     (9)  A firearm was used in the commission of the offense charged;

    (10)  The defendant is charged with the distribution of a dangerous, harmful, or detrimental drug to a minor;

    (11)  The defendant has been charged with a felony offense and has been previously granted deferred acceptance of guilty plea status for a prior offense, regardless of whether the period of deferral has already expired;

    (12)  The defendant has been charged with a misdemeanor offense and has been previously granted deferred acceptance of guilty plea status for a prior felony, misdemeanor, or petty misdemeanor for which the period of deferral has not yet expired;

    (13)  The offense charged is:

         (A)  Escape in the first degree;

         (B)  Escape in the second degree;

         (C)  Promoting prison contraband in the first degree;

         (D)  Promoting prison contraband in the second degree;

         (E)  Bail jumping in the first degree;

         (F)  Bail jumping in the second degree;

         (G)  Bribery;

         (H)  Bribery of a witness;

         (I)  Intimidating a witness;

         (J)  Bribery of or by a juror;

         (K)  Intimidating a juror;

         (L)  Jury tampering;

         (M)  Promoting prostitution in the first degree;

         (N)  Promoting prostitution in the second degree;

         (O)  Promoting prostitution in the third degree;

         (P)  Abuse of family or household members;

         (Q)  Sexual human trafficking in the first degree;

         (R)  Sexual human trafficking in the second degree;

         (S)  Sexual human trafficking in the third degree;

         (T)  Labor trafficking in the first degree;

         (U)  Labor trafficking in the second degree;

         (V)  Labor trafficking in the third degree;

        [(Q)] (W)  Sexual assault in the second degree;

        [(R)] (X)  Sexual assault in the third degree;

        [(S)] (Y)  A violation of an order issued pursuant to chapter 586;

        [(T)] (Z)  Promoting child abuse in the second degree;

        [(U)] (AA)  Promoting child abuse in the third degree;

        [(V)] (BB)  Electronic enticement of a child in the first degree; or

        [(W)] (CC)  Electronic enticement of a child in the second degree;

    (14)  The defendant has been charged with:

         (A)  Knowingly or intentionally falsifying any report required under chapter 11, subpart B of part XII, with the intent to circumvent the law or deceive the campaign spending commission; or

         (B)  Violating section 11-201 or 11-202; or

    (15)  The defendant holds a commercial driver's license and has been charged with violating a traffic control law, other than a parking law, in connection with the operation of any type of motor vehicle.

     The court may adopt by rule other criteria in this area."

     SECTION 9.  Section 853-4, Hawaii Revised Statutes, is amended to read as follows:

     "§853-4  Chapter not applicable; when.  This chapter shall not apply when:

     (1)  The offense charged involves the intentional, knowing, reckless, or negligent killing of another person;

     (2)  The offense charged is:

         (A)  A felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person; or

         (B)  A misdemeanor or petty misdemeanor that carries a mandatory minimum sentence and that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person;

     (3)  The offense charged involves a conspiracy or solicitation to intentionally, knowingly, or recklessly kill another person or to cause serious bodily injury to another person;

     (4)  The offense charged is a class A felony;

     (5)  The offense charged is nonprobationable;

     (6)  The defendant has been convicted of any offense defined as a felony by the Hawaii Penal Code or has been convicted for any conduct that if perpetrated in this State would be punishable as a felony;

     (7)  The defendant is found to be a law violator or delinquent child for the commission of any offense defined as a felony by the Hawaii Penal Code or for any conduct that if perpetrated in this State would constitute a felony;

     (8)  The defendant has a prior conviction for a felony committed in any state, federal, or foreign jurisdiction;

     (9)  A firearm was used in the commission of the offense charged;

    (10)  The defendant is charged with the distribution of a dangerous, harmful, or detrimental drug to a minor;

    (11)  The defendant has been charged with a felony offense and has been previously granted deferred acceptance of guilty plea status for a prior offense, regardless of whether the period of deferral has already expired;

    (12)  The defendant has been charged with a misdemeanor offense and has been previously granted deferred acceptance of guilty plea status for a prior felony, misdemeanor, or petty misdemeanor for which the period of deferral has not yet expired;

    (13)  The offense charged is:

         (A)  Escape in the first degree;

         (B)  Escape in the second degree;

         (C)  Promoting prison contraband in the first degree;

         (D)  Promoting prison contraband in the second degree;

         (E)  Bail jumping in the first degree;

         (F)  Bail jumping in the second degree;

         (G)  Bribery;

         (H)  Bribery of a witness;

         (I)  Intimidating a witness;

         (J)  Bribery of or by a juror;

         (K)  Intimidating a juror;

         (L)  Jury tampering;

         (M)  Promoting prostitution in the first degree;

         (N)  Promoting prostitution in the second degree;

         (O)  Promoting prostitution in the third degree;

         (P)  Abuse of family or household members;

         (Q)  Sexual human trafficking in the first degree;

         (R)  Sexual human trafficking in the second degree;

         (S)  Sexual human trafficking in the third degree;

         (T)  Labor trafficking in the first degree;

         (U)  Labor trafficking in the second degree;

         (V)  Labor trafficking in the third degree;

        [(Q)] (W)  Sexual assault in the second degree;

        [(R)] (X)  Sexual assault in the third degree;

        [(S)] (Y)  A violation of an order issued pursuant to chapter 586;

        [(T)] (Z)  Promoting child abuse in the second degree;

        [(U)] (AA)  Promoting child abuse in the third degree;

        [(V)] (BB)  Electronic enticement of a child in the first degree;

        [(W)] (CC)  Electronic enticement of a child in the second degree; or

        [(X)] (DD)  An offense under part IV, chapter 291E;

    (14)  The defendant has been charged with:

         (A)  Knowingly or intentionally falsifying any report required under chapter 11, subpart B of part XII, with the intent to circumvent the law or deceive the campaign spending commission; or

         (B)  Violating section 11-201 or 11-202; or

    (15)  The defendant holds a commercial driver's license and has been charged with violating a traffic control law, other than a parking law, in connection with the operation of any type of motor vehicle.

     The court may adopt by rule other criteria in this area."

     SECTION 10.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 11.  If any provision of this Act, or its application to any person or transaction or other circumstances, is for any reason held to be unconstitutional or invalid, the remaining provisions of this Act, or the application of this Act to other persons or transactions or circumstances, shall not be affected.  The legislature hereby declares that it would have passed this Act, and each provision thereof, irrespective of the fact that any one or more provisions of this Act, or their application to any person or transaction or other circumstance, has been declared unconstitutional or invalid, and to this end, the provisions of this Act are severable.

     SECTION 12.  In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 13.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.


     SECTION 14.  This Act shall take effect upon its approval; provided that section 9 shall take effect on January 1, 2011.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Human Trafficking Offenses; Crime

 

Description:

Establishes class A, B, and C felony sexual human trafficking offenses and class A, B, and C felony labor trafficking offenses, and provisions related to prosecution of the offenses.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.