HAWAII REVISED STATUTES ANNOTATED DIVISION 5. CRIMES AND CRIMINAL PROCEEDINGS TITLE 37. HAWAII PENAL CODE CHAPTER 712. OFFENSES AGAINST PUBLIC HEALTH AND MORALS PART I. PROSTITUTION AND PROMOTING PROSTITUTION HRS ¤ 712-1200 (1999) ¤ 712-1200. Prostitution (1) A person commits the offense of prostitution if the person engages in, or agrees or offers to engage in, sexual conduct with another person for a fee. (2) As used in subsection (1), "sexual conduct" means "sexual penetration," "deviate sexual intercourse," or "sexual contact," as those terms are defined in section 707-700. (3) Prostitution is a petty misdemeanor. (4) A person convicted of committing the offense of prostitution shall be sentenced as follows: (a) For the first offense, when the court has not deferred further proceedings pursuant to chapter 853, a mandatory fine of $500 and the person may be sentenced to a term of imprisonment of not more than thirty days or probation; provided that in the event the convicted person defaults in payment of the $500 fine, and the default was not contumacious, the court may sentence the person to perform services for the community as authorized 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, without possibility of deferral of further proceedings pursuant to chapter 853 and without possibility of suspension of sentence. (c) For the purpose of this subsection, if the court has deferred further proceedings pursuant to chapter 853, and notwithstanding any provision of chapter 853 to the contrary, the defendant shall not be eligible to apply for expungement pursuant to section 831-3.2 until four years following discharge. A plea previously entered by a defendant under section 853-1 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 a condition of probation that the defendant complete a course of prostitution intervention classes; provided that the court may only impose such condition for one term of probation. (5) 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. HISTORY: L 1972, c 9, pt of ¤ 1; am L 1981, c 110, ¤ 1; am L 1986, c 314, ¤¤ 73, 74; am L 1990, c 204, ¤ 1; am L 1993, c 130, ¤ 1; am L 1998, c 177, ¤ 2 NOTES: EDITOR'S NOTE. --1990 Haw. Sess. Laws, Act 204, which amended this section, in ¤ 2 provides that the Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before June 19, 1990. 1993 Haw. Sess. Laws, Act 130, ¤ 6 provides that the amendment to subsection (4) "shall be retroactive for all pending cases." THE 1998 AMENDMENT, effective July 15, 1998, in subsection (4), substituted "days or probation; provided that in" for "days; provided, in" in (4)(a); in (4)(b), inserted "mandatory" preceding "fine" and "or probation" following "thirty days", and deleted "or probation" following "of sentence"; redesignated the former second and third sentences of (4)(b) as present (4)(c), and added the present last sentence. CASE NOTES VIOLATION OF SECTION ABSENCE PUBLIC SOLICITATION NOT PROTECTED BY CONSTITUTIONAL GUARANTEES OF PERSONAL PRIVACY. --Defendant's decision to engage in sex for hire in her apartment with a consenting adult, not preceded by public solicitation, was not as a fundamental right protected by state and United States constitutional guarantees of personal privacy. State v. Mueller, 66 Haw. 616, 671 P.2d 1351 (1983). NO RIGHT TO JURY TRIAL FOR CHARGES OF PROSTITUTION. --Where the maximum authorized term of imprisonment for a prostitution offense was 30 days, prostitution was presumptively a petty offense to which the right to a trial by jury did not attach, and consideration of the other factors described in State v. Nakata, 76 Haw. 360, 878 P.2d 699 (1994), failed to overcome the presumption. State v. Lindsey, 77 Haw. 162, 883 P.2d 83 (1994). USE OF CIVILIAN AGENT WHO ENGAGED IN SEXUAL ACTIVITY WITH DEFENDANT NOT ENTRAPMENT. --Conduct of police, in using a civilian agent to secure convictions for prostitution by actually engaging in sexual activity with defendants, did not violate due process or constitute entrapment. State v. Tookes, 67 Haw. 608, 699 P.2d 983 (1985). SUBSECTION (1) GENDER-NEUTRAL. --The prohibition of subsection (1) is gender-neutral -- that is, it is triggered by a sale of sexual services by a man or a woman. State v. Tookes, 67 Haw. 608, 699 P.2d 983 (1985). TESTIMONY OF CONVERSATION NOT HEARSAY. --Testimony by a police officer between defendant and tourists offered as evidence of defendant's offer to engage in sexual conduct with one of the males in exchange for a fee, was not hearsay because the statements were not offered to prove the truth of the matter asserted, rather, the statements were "verbal acts" or "operative facts," demonstrating that defendant made the requisite offer proscribed by the prostitution statute. State v. Connally, 79 Haw. 123, 899 P.2d 406 (Ct. App. 1995). ENFORCEMENT NOT SEXUAL DISCRIMINATION. --Enforcement of the prostitution law did not reveal any pattern of invidious sexual discrimination, where there was no police department policy to discriminate against female prostitutes in favor of male prostitutes. State v. Tookes, 67 Haw. 608, 699 P.2d 983 (1985). PUBLIC PROSTITUTION DEFINED. --Where prostitution is practiced in a manner so that it affects public morals, it constitutes public prostitution. Territory v. Rogers, 37 Haw. 566 (1947). INDICTMENT NOT DUPLICITOUS. --Where the offense alleged was that of procuring or pimping, and the wording of the indictment "induce, compel and procure" and "to practice prostitution and to hold herself out as a prostitute" alleged alternate modes of accomplishing the general object of soliciting for the purpose of practicing prostitution, such language did not render the indictment duplicitous. Territory v. Lii, 39 Haw. 574 (1952) (decided under former R.L.H. 1945, ¤ 11676). SEXUAL SLANG HAD EVIDENTIARY VALUE. --In a prosecution for prostitution although a crucial portion of the police officer's testimony consisted of sexual slang expressions used by the defendant that were not explained or defined by the officer, the testimony nevertheless had evidentiary value and could serve as proof of an element of a crime since they were intelligible to the trial court and would also be recognized by a large segment of the adult population. State v. Lunceford, 66 Haw. 493, 666 P.2d 588 (1983). EVIDENCE SUFFICIENT TO SUSTAIN VERDICT. See Territory v. Rodrigues, 30 Haw. 198 (1927) (decided under former ¤ 4492, R.L. 1925 ("vagrancy")). ACT NOT SUFFICIENT TO SUPPORT CONVICTION. --Evidence from which an inference of guilt could have been drawn, but which were also consistent with an inference of a friendly relationship between the defendant and the prosecution witness which included occasional sexual conduct and also included gifts of money by the witness to the defendant, motivated solely by concern for the defendant's welfare, was not sufficient to support a conviction for prostitution. State v. Benton, 56 Haw. 409, 538 P.2d 1206 (1975). DEFERRED ACCEPTANCE OF GUILTY PLEA NOT ALLOWED. --Subsection (4), as amended by Act 110 of the Session Laws of 1981, prevents the acceptance by the trial court of a deferred acceptance of guilty plea upon a plea of guilty to the charge of prostitution under ¤ 853-1. State v. Tangalin, 66 Haw. 100, 657 P.2d 1025 (1983). As a matter of law, a Deferred Acceptance of No Contest is not available under this section. State v. Dannenberg, 74 Haw. 75, 837 P.2d 776, recons. denied, 843 P.2d 144 (Haw. 1992). SENTENCING SUBSEQUENT OFFENSES UNDER PARAGRAPH (4)(B). --If defendants were encouraged to consolidate all of their cases, plead guilty to each offense, request sentencing in reverse chronological order, and never have any of the offenses deemed a "subsequent offense", such application of the repeat offender provision of paragraph (4)(b) would yield absurd results and would be inconsistent with the stated purpose of the statute. State v. Ramela, 77 Haw. 394, 885 P.2d 1135 (1994). "SUBSEQUENT OFFENSE" DEFINED. --Where defendant was found guilty on August 22, 1991, first of a prostitution offense committed on April 24, 1991, and then of a prostitution offense committed on June 13, 1991, the sentencing for the June 13, 1991, offense was, both in terms of commission and ascertainment of guilt, a sentencing for a "subsequent offense" to the April 24, 1991 offense, and subsection (4)(b) of this section was applicable. State v. Simpson, 9 Haw. App. 165, 827 P.2d 1156 (1992). GEOGRAPHIC RESTRICTION OF DEFENDANT PROPER. --If the geographic restriction were a condition of defendant's sentence, it would have been improper, however, because the prohibition was a condition of defendant's bail, it was proper under HRS ¤ 804-7.1. State v. Stanford, 79 Haw. 150, 900 P.2d 157 (1995). Although the restriction covered a large physical space, defendant was only forbidden to enter this area during the hours most closely associated with the crime for which she was found guilty, and the bail restriction was sufficiently definite such that the average person was provided adequate notice of what behavior was prohibited. State v. Stanford, 79 Haw. 150, 900 P.2d 157 (1995). CITED in State v. Mun Chung Tom, 69 Haw. 602, 752 P.2d 597 (1988) State v. Alexander, 62 Haw. 112, 612 P.2d 110 (1980) State v. Paradis, 6 Haw. App. 101, 711 P.2d 1307 (1985). NOTES APPLICABLE TO ENTIRE TITLE EDITOR'S NOTE. --1972 Haw. Sess. Laws, Act 9, repealed or recodified former Title 37, "Criminal Law," substituting present Title 37, the Hawaii Penal Code. For the disposition of former Title 37, see the table in the appendix at the end of this title. CROSS REFERENCES. --As to prohibition against ownership or possession of firearms by persons who have committed a crime of violence constituting a felony under Title 37, see ¤ 134-7. NOTES APPLICABLE TO ENTIRE CHAPTER RESEARCH REFERENCES ALR4th. Carwash as nuisance. 4 A.L.R.4th 1308. Odor of narcotics as providing probable cause for warrantless search. 5 A.L.R.4th 681. Availability of defense of entrapment where accused denies commiting acts which constitute offense charged. 5 A.L.R.4th 1123. Boating, fishing, wading or recreational rights of public in inland streams, the bed of which is privately owned. 6 A.L.R.4th 1030. Acquittal of principal or his conviction of lesser degree of offense as affecting prosecution of accessory or aider and abettor. 9 A.L.R.4th 972. Reckless driving as lesser included offense of driving while intoxicated or similar charge. 10 A.L.R.4th 1252. Entrapment defense in sex offense prosecutions. 12 A.L.R.4th 413. Prosecution or conviction of one conspirator as affected by disposition of case against coconspirators. 19 A.L.R.4th 192. Destruction of ampoule used in alcohol breath test as warranting suppression of result of test. 19 A.L.R.4th 509. Sufficiency of showing that voluntariness of confession or admission was affected by alcohol or other drugs. 25 A.L.R.4th 419. Automatism or unconsciousness as defense to criminal charge. 27 A.L.R.4th 1067. Inspection: State and local administrative inspection of and administrative warrants to search pharmacies. 29 A.L.R.4th 264. Lawfulness of warrantless search of purse or wallet of person arrested or suspected of crime. 29 A.L.R.4th 771. Towing, impounding, or destruction of motor vehicles parked or abandoned on streets and highways. 32 A.L.R.4th 728. Validity of routine roadblocks by state or local police for purpose of discovery of vehicular or driving violations. 37 A.L.R.4th 10. Necessity of conviction of offense associated with property seized necessary to support forfeiture. 38 A.L.R.4th 515. Conduct sufficiently violent, tumultuous, forceful, aggressive, or terrorizing to establish crime of riot. 38 A.L.R.4th 648. Motorist's right to private sobriety test. 45 A.L.R.4th 11. Failure to restrain drunk driver as ground of liability of state or local government unit or officer. 48 A.L.R.4th 320. Validity, construction, and application of statutes or ordinances involved in prosecutions for possession of bookmaking paraphernalia. 51 A.L.R.4th 796. Validity, construction, and application of statutes or ordinances involved in prosecutions for transmission of wagers or wagering information related to bookmaking. 53 A.L.R.4th 801. Validity, construction, and application of statute or ordinance prohibiting or regulating use of messenger services to place wagers in pari-mutuel pool. 78 A.L.R.4th 483. LEGAL PERIODICALS UNIVERSITY OF HAWAII LAW REVIEW. Article, The Law and Politics of Dancing: Barnes v. Glen Theatre and the Regulation of Striptease Dance, 14 U. Haw. L. Rev. 925 (1992). --------- HAWAII REVISED STATUTES ANNOTATED DIVISION 5. CRIMES AND CRIMINAL PROCEEDINGS TITLE 37. HAWAII PENAL CODE CHAPTER 712. OFFENSES AGAINST PUBLIC HEALTH AND MORALS PART I. PROSTITUTION AND PROMOTING PROSTITUTION HRS ¤ 712-1201 (1999) ¤ 712-1201. Promoting prostitution; definition of terms In sections 712-1202, 712-1203 and 712-1204: (1) A person "advances prostitution" if, acting other than as a prostitute or a patron of a prostitute, he knowingly causes or aids a person to commit or engage in prostitution, procures or solicits patrons for prostitution, provides persons for prostitution purposes, permits premises to be regularly used for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution. (2) A person "profits from prostitution" if, acting other than as a prostitute receiving compensation for personally-rendered prostitution services, he accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of prostitution activity. HISTORY: L 1972, c 9, pt of ¤ 1 CASE NOTES CITED in Territory v. Kimbrel, 31 Haw. 81 (1929) Alford v. Hawaii, 205 F.2d 616 (9th Cir. 1953) State v. Yoshida, 44 Haw. 352, 354 P.2d 986 (1960). ---------- HAWAII REVISED STATUTES ANNOTATED DIVISION 5. CRIMES AND CRIMINAL PROCEEDINGS TITLE 37. HAWAII PENAL CODE CHAPTER 712. OFFENSES AGAINST PUBLIC HEALTH AND MORALS PART I. PROSTITUTION AND PROMOTING PROSTITUTION HRS ¤ 712-1204 (1999) ¤ 712-1204. Promoting prostitution in the third degree (1) A person commits the offense of promoting prostitution in the third degree if the person knowingly advances or profits from prostitution. (2) Promoting prostitution in the third degree is a misdemeanor. HISTORY: L 1972, c 9, pt of ¤ 1; gen ch 1993 CASE NOTES CITED in State v. Medeiros, 1 Haw. App. 536, 621 P.2d 986 (1981). ---------- HAWAII REVISED STATUTES ANNOTATED TITLE 37. HAWAII PENAL CODE CHAPTER 706. DISPOSITION OF CONVICTED DEFENDANTS PART IV. IMPRISONMENT HRS ¤ 706-663 (1999) ¤ 706-663. Sentence of imprisonment for misdemeanor and petty misdemeanor After consideration of the factors set forth in sections 706-606 and 706-621, the court may sentence a person who has been convicted of a misdemeanor or a petty misdemeanor to imprisonment for a definite term to be fixed by the court and not to exceed one year in the case of a misdemeanor or thirty days in the case of a petty misdemeanor. ---------- HAWAII REVISED STATUTES ANNOTATED DIVISION 5. CRIMES AND CRIMINAL PROCEEDINGS TITLE 37. HAWAII PENAL CODE CHAPTER 706. DISPOSITION OF CONVICTED DEFENDANTS PART III. FINES AND RESTITUTION HRS ¤ 706-641 (1999) ¤ 706-641. Criteria for imposing fines (1) The court shall not sentence a defendant only to pay a fine, when any other disposition is authorized by law, except in misdemeanor and petty misdemeanor cases. (2) The court shall not sentence a defendant to pay a fine in addition to a sentence of imprisonment or probation unless: (a) The defendant has derived a pecuniary gain from the crime; or (b) The court is of the opinion that a fine is specially adapted to the deterrence of the crime involved or to the correction of the defendant. (3) The court shall not sentence a defendant to pay a fine unless: (a) The defendant is or will be able to pay the fine; and (b) The fine will not prevent the defendant from making restitution to the victim of the offense. (4) In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose. HISTORY: L 1972, c 9, pt of ¤ 1; am L 1986, c 314, ¤ 34 CASE NOTES THE MANDATE UNDER 431:10C-117(A)(2) TO IMPOSE A $1,000 FINE SUPERSEDES THE PARTS OF THIS SECTION that allow the courts the discretion to decide whether to sentence a defendant to pay a fine and to decide the amount of the fine; however, the mandate does not supersede the other parts of this section and ¤ 706-642 that allow the courts the discretion to decide the time to pay and the method of payment. State v. Gray, 77 Haw. 476, 888 P.2d 376 (Ct. App. 1995), overruled on other grounds, State v. Bolosan, 78 Haw. 86, 890 P.2d 673 (1995). CITED in State v. Anderson, 4 Haw. App. 102, 661 P.2d 716 (1983).