I read something on a friend’s webpage today, a friend who I trust and respect to use the brain and best judgment. And when I read it, it literally blew my mind.
I. Here is where I lose friends.
What I’m talking about is a petition by the Pacific Alliance to Stop Slavery, read it first here: http://www.change.org/petitions/pass-safe-harbor-end-demand-for-prostitution-laws-in-hawaii. Read that first for the context. I don’t think I’ve thought this hard about potential new laws since the Food Truck mess. I would point out, after my post on Bill 59 (still one of the most popular posts on my minor webpage) Tulsi Gabbard took the bill back into committee and made pretty much 100% of the changes I advocated. This is tough love. I post this to help you.
After reading that petition and reviewing the PASS – PACIFIC ALLIANCE TO STOP SLAVERY webpage, I immediately reached out through the network of professionals I deal with everyday in the Juvenile justice system. The network includes Prosecutors and Defense attorneys; their experiences and their contacts, including actual cases and Probation Officers. The juvenile justice system in Hawaii is confidential, meaning I can’t betray names or individual cases, but I can talk about specifics using generalities to explain particular points. I’ve also written about the juvenile justice system here before. I have also been published in the Star-Advertiser with my views on the Juvenile justice system.
II. The Pacific Alliance to Stop Slavery Petition:
The very first sentence of that above webpage reads: “Currently, Hawaii has no protocol to legally detain juveniles rescued from prostitution without criminalizing them.” The first sentence is the first misstatement of the law.
Hawaii Revised Statute 571-31 “Taking Children into custody; release; Notice;” reads
“(a) A child may be taken into custody by any police officer without order of the judge when there are reasonable grounds to believe that a child comes within section 571-11(1) or (2)…”
So next we look at Hawaii Revised Statute 571-11(1) and (2). Now it’s true, 571-11(1) is about criminal offenses. Only subsection (2) reads:
(2) Concerning any child living or found within the circuit:
(A) Who is neglected as to or deprived of educational services because of the failure of any person or agency to exercise that degree of care for which it is legally responsible;
(B) Who is beyond the control of the child’s parent or other custodian or whose behavior is injurious to the child’s own or others’ welfare;
(C) Who is neither attending school nor receiving educational services required by law whether through the child’s own misbehavior or nonattendance or otherwise; or
(D) Who is in violation of curfew;
So which of these categories does a child prostitute fall into? I would suggest all of them.
Never mind that the reason for the petition is false, what is the Pacific Alliance to Stop Slavery really requesting?
The Pacific Alliance to Stop Slavery is asking for a “Safe Harbor Bill” which, without defining the actual words in the law, the goal is suggested to “give minors immunity from prosecution and refer these victimized children to proper rehabilitative and healing services rather than to incarceration.”
The Pacific Alliance to Stop Slavery will be glad to know, then, that the proper rehabilitative and healing services rather than incarceration is already the goal.Hawaii Revised Statute 571-1 Construction and purpose of chapter reads in part:
[I]t shall be a policy and purpose of said courts to promote the reconciliation of distressed juveniles with their families, foster the rehabilitation of juveniles in difficulty, render appropriate punishment to offenders, and reduce juvenile delinquency. The court shall conduct all proceedings to the end that no adjudication by the court of the status of any child under this chapter shall be deemed a conviction; no such adjudication shall impose any civil disability ordinarily resulting from conviction; no child shall be found guilty or be deemed a criminal by reason of such adjudication; no child shall be charged with crime or be convicted in any court except as otherwise provided in this chapter; and all children found responsible for offenses shall receive dispositions that provide incentive for reform or deterrence from further misconduct, or both.
Let’s go slower and start with the last part first:
“Proper Rehabilitative and healing services” equal “foster the rehabilitation of juveniles in difficulty” and “all children found responsible for offenses shall receive dispositions that provide incentive to reform or deterrence from further misconduct”.
Now to be clear, there is no “immunity from prosecution” in the law right now. But what is in the law? There is an immunity from conviction. The legislature wanted to impress this so much, they say it the same way at least four different ways. PASS completely misses this distinction with a difference. How would immunity from Prosecution be different to immunity from conviction? I’m not sure in toto. But an important question to ask is, “Is there ever a time you would WANT to prosecute a juvenile prostitute.
When I posed this question to my contacts, I received an answer from a juvenile probation officer via transmitted message, with a resounding “of course”. We’re talking about girls who are 16, 17, about to be 18. Potentially with multiple prior contacts with the system, would you want them to taste what being convicted as an adult would be like? Without actually being convicted like an adult? I would suggest that you would agree, “of course”! No one is using HYCF as a punitive measure. It is actually very functional as a rehabilitative measure. This suggestion of “immunity” would take a tool away from the family courts in dealing with retraining girls to escape their pimps, absolutely not add to it. Under current law the Prosecutor has every right to elect to prosecute or NOT prosecute each case. When Prosecution is a useful tool to teach, they can prosecute, when it is not, the Prosecutor can pass.
So PASS wants you to encourage the legislature to reform in the law, based on falsehood, to something the law already includes. Interesting petition.
III. But that’s not all
So of while the first part of this petition is about ending childhood prostitution and ex-slavery, the petition then conflates another issue and talks about an “End Demand Bill.” Again based on a falsehood and again a horrible idea (at least as presented in context of this petition). Let’s start with the falsehood and then move on to two amazing reasons why this is a horrible idea.
Their statement: “The existing penalty for johns is a petty misdemeanor, equivalent to the fine of riding a bicycle on the sidewalk.” Here’s my understanding of the law (and I’ve done full jury trials quoting bicycle laws):
Honolulu Revised Ordinance Sec. 15-8.7 Riding on Sidewalks: Actually, it’s only in certain circumstances you cannot ride a bicycle on the sidewalk, in most of the island you absolutely can ride on the sidewalk. Okay, let’s say you are in those certain parts of the island where you can’t (i.e., Downtown, Waikiki, etc), the real issue here is, what is the penalty? The best penalty statute I can find is Honolulu Revised Ordinance Sec. 15- 26.9 Unspecified penalty and administrative fine:
“(b) Every person who violates any provision of this traffic code for which another penalty is not provided shall, for a first offense thereof, be fined not less than $15.00, but not more than $100.00; for a second offense committed within one year after the date of the first offense, the person shall be fined not less than $15.00, but not more than $200.00.”
So not only is this not a petty misdemeanor but also the maximum penalty is $100. So let’s turn to prostitution:
Hawaii Revised Statute 712-1200 Prostitution in its Penalty clauses state:
a mandatory fine of $500 and the person may be sentenced to a term of imprisonment of not more than thirty days or probation. 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.
I don’t know a single other statute that has a mandatory thirty day jail period for a second offense.
Not one in the whole of the law. As far as chapter 853 Deferral on prostitution in Hawaii, the explanation of that is outside the scope of this article, but what I would explain is this. For any other charge of this magnitude, charges may be expunged within one year after the deferral period but for prostitution it is four years after the expiration of the deferral period. Again, a very strict penalty.
But let’s go back to the original statement: Is it true, is the penalty for the offense “equivalent to riding a bicycle on the sidewalk.” Here’s your comparison chart:
Bicycleon the sidewalk:
- First time minimum: $15.00
- First time maximum: $100.00
- First time minimum: $500.00
- First time maximum: $1000.00 and 30 days IN JAIL.
This is how PASS sells you an emotion on false facts. If Republicans used facts like this, it would be on the Jon Stewart show.
To steal the phrasing of the Pacific Alliance to Stop Slavery, untruth anywhere is a threat to truth everywhere. Really, I think if they would just depend on honest representations of the current law, they would have much more credibility.
Except their solutions, while well-meaning, shows they have no understanding of sentencing science OR the judicial system. Let me address how these relate to the “End Demand Bill” both in turn. Keep in mind, the “End Demand Bill” has absolutely nothing to do with child prostitution as mentioned in the first paragraph of the petition.
Why the “End Demand Bill” is a dumb idea
We have to put aside first the constitutional equal protection argument here: “You’re making something illegal for men which is not illegal for women.” How would the directors of PASS feel if we switched genders on that argument?
Putting that aside, increasing penalties for a first offense has a pretty negligible effect on crimes of this type.
A selection of three articles on the topic:
Also note that when deterrence is effected by punishment, it seems to be property and violent crimes that are effected, but not violent sexual crimes at all.
How to Cut Prison Costs Without Driving Up Crime?
I haven’t found an article that directly addresses the affect of punishment on prostitution but the general result of a survey of these articles is this: There must be knowledge of the higher penalty, and usually knowledge of the threat of a higher penalty impacts both recidivism and deterrence. A higher penalty by its lonesome does nothing. The three strikes law affects people in California because after their first strike, they realize that they may soon qualify for that sentencing enhancement.
But remember when we talked about the penalties for Prostitution, that graduated sentencing scheme, it is in the law now. Basically, if you get convicted of a second offense, as a a John, you get 30 days minimum jail, no suspension, do not pass Go, do not collect $200. Maximum. Jail. Now.
So the only goal would be to increase the level of the penalty, and that is what they do not want to do, whether they realize it or not because what comes with a full misdemeanor or felony everyone?
Based on the Hawaii State constitution and Supreme Court Jurisprudence any criminal charge punishable by 6 months or more in jail gives the Defendant a right to a jury trial. This is the last thing the Pacific Alliance to Stop Slavery wants, but they do realize it yet. More jury trials means less convictions. Period.
Let me switch gears and inform the casual reader quickly how most Johns are arrested. They are arrested through Sting operations, through craigslist.org, backpage.com, and walking the streets at night. A police officer has to dress and act as a prostitute in order to catch a John. Therefore the Number one defense to prostitution is Entrapment. For entrapment to exist, the fact-finder basically has to agree that the police officer had to employ methods of persuasion or inducement which create a substantial risk that the offense would be committed by persons other than those who are ready to commit it. Right now, the fact-finder is a judge, a judge who will say, “The officer did what they were told to do, I believe the officer. Guilty. Sentence.”
With a jury trial, you now have twelve angry men asking everything from, “Why didn’t the police record the conversation?” They never do, in spite of having recorders, in spite of us all having recorders on their cell phone; to “What method of persuasion did the officer pull to get him to say yes?” In fear of me sounding sexist, I think it is real that juries may reject certain police officers modes of dress, manners, types of ads on the internet, and especially certain tactics, i.e. “How about me and my friend” (Which seems very popular recently); even “Do I really believe the officer that the John said that?”
By creating a right to a jury trial, you will lower the number of convictions. Period. A jury will be much more likely to embrace an entrapment defense in a sting operation than a single judge in district court. If that is what you are really fighting for, be prepared for a lot of people to walk free until the Morals division steps their report writing and skills to the level of the other Felony police divisions.
Addendum: Penalties for Johns in Child Prostitution in Honolulu
IV. So what does it hurt?
Addendum: Penalties for Johns in Child Prostitution in Honolulu
So someone else told me, they support the law, what does it hurt?
I would suggest anytime you petition your legislature, based on lies or misunderstandings, to do things that will probably hurt your true cause, you might be making a mistake. You hurt the underlying credibility of your organization, your real cause, and make people healthily skeptical of your goals.
Especially when this is an underrepresented population that needs support. Just do it honestly.
The problem is any legislator who reads a petition that starts with “The law does not contain __blank__” takes one of two actions, 1) either they already know whether the law contains __blank__, or 2) turns to an aid and says “Find out if the law contains __blank__”. As soon as they find out “It’s right there, in the basic jurisdictional statute” there’s no reason to read the petition any more. Instantly the rest of it loses credibility.
OR, they act on the petition, announce it for reading in front of the assembly, and immediately everybody else in the body, the gallery, and the news media (let alone the judiciary) says “What are they talking about, that law is already in the basic jurisdictional statute.”
You don’t get to teach the class before you finish your homework. I can’t say I’ve studied prostitution or its ills or its ill effects on society or the girls who are trapped in it. I have studied the law. This petition is wrongheaded.
I want to be very clear, I’m sure the Pacific Alliance to Stop Slavery is well-intentioned. I certainly agree with parts of their goal. But if you’re looking to make the world a better place, be very careful that your unintended circumstances don’t make things worse.
I would like this page to act as the SNOPES.com of the claims that the Pacific Alliance to Stop Slavery makes. If you google their petition, you can read the facts here. It’s not about “hearing both sides”, I’m not on the opposite side. I don’t have a horse in this race, although I’m sure simply by challenging the methods I will be perceived as an enemy of the goals. I believe in the truth and more importantly, improving the justice system. If they want to speak to me to help them focus their efforts on useful legislation, I would love to help achieve some of their true goals, but the proper way.
And for chrissakes, if you’re going to make points based on the law, at least read the law!