House Bill 1926, a laudable effort to harden the law against prostitution of minors, got sidetracked — embarrassingly for the Honolulu Police Department — over an exemption that supposedly allows police officers to engage in sex with prostitutes.
The HPD vigorously objects to this characterization, saying that strict departmental controls prevent such objectional conduct. We hope so. Unfortu- nately, we can’t just take HPD’s word for it.
It’s true that the police need flexibility in pursuing difficult undercover operations. But the exemption in the current law is too broad and needs to be reined in.
Where things broke down last week was over the original bill’s effort to more clearly define the exemption for law enforcement investigating any prostitution case. Advocates for laws combatting human trafficking argued in the Senate last week, correctly, that the clearer language should be restored to the bill.
Under the law, the crime of prostitution is committed when a person "engages in, or agrees or offers to engage in, sexual conduct with another person for a fee; or pays, agrees to pay, or offers to pay a fee to another to engage in sexual conduct."
There’s an exemption stating simply that "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."
What HB 1926 originally proposed was that a phrase — "unless the action includes sexual penetration or sadomasochistic abuse" — be added at the end.
In other words, an undercover officer could go so far as to make the transaction but not consummate it, at least not through the sexual actions barred by this legal restriction.
HPD officials argue that the department has internal regulations and controls to prohibit such an abuse of the exemption, and sent representatives to testify against this language.
Capt. Jason Kawabata of the Narcotics/Vice Division said the amendment would "nullify" the exemption and bar an undercover officer from even making an agreement to pay for the sexual act.
"Even if the intent of the amendment is merely to limit actual conduct by the officer, we must oppose it," Kawabata added. "Codifying the limitations on an officer’s conduct would greatly assist pimps and prostitutes in their efforts to avoid prosecution."
First, the amendment does nothing to negate the exemption, but only draws a distinct boundary for acceptable actions. Second, HPD appears to suggest that police conduct should not be codified in these operations because undisclosed, internal rules would take care of the problem.
What they fail to acknowledge is that police do not disclose details on officer misconduct. Many police disciplinary actions happen beneath a veil of secrecy. Other legislation attempting to lift that veil has faced pushback from HPD.
So if police officers were to abuse their prostitution exemption, it’s hard to see how the public would find out. That alone is reason why legal limitations on police conduct are needed.
Following Friday’s hearing before the Senate Judiciary Committee, Sen. Clayton Hee, committee chairman, said he would amend the bill to end the exemption.
Lawmakers should take care to leave enough allowances for police to pursue an undercover investigation. Verbal promises to transact should be enough to support a prostitution arrest.
But drawing a red line prohibiting an actual sexual encounter ensures that police would not be engaging in precisely the same behavior the law seeks to suppress.
That is absolutely the right thing to do.
