A House committee Thursday advanced three bills designed to remove legal loopholes so that prosecutors will be able to more easily pursue cases against adults who show pornographic material to minors.
The bills were introduced by Rep. Scott Nishimoto, the House Judiciary chairman, in response to a recent case in which Honolulu prosecutors declined to charge a man who allegedly showed a pornographic video to a 4-year-old girl who was at his home for a sleepover. The girl was a friend of one of the man’s sons, her preschool classmate.
The father was arrested last year but never charged, in part because of the way Hawaii’s promoting pornography law is written, prosecutors told the Honolulu Star-Advertiser.
State law exempts parents, guardians or those acting “in loco parentis,” or in place of a parent, from the promoting pornography statute. The exception was created because of a reluctance by legislators to infringe on parental rights related to raising children, including in the area of sex education.
Hawaii law also requires that the pornographic material must be proved to appeal to the prurient interests, or sexual arousal, of the minor.
But supporters of amending the law say the “in loco parentis” exception and the prurient interest requirement are potential obstacles for prosecuting cases.
Some minors, such as a 4-year-old, are too young to be able to express prurient interests, argued the proponents of changing the law.
They also said that the provision dealing with “in loco parentis,” which is not defined in the statute, creates enough ambiguity to present potential obstacles to prosecution.
In the recent case involving the 4-year-old, for instance, the suspect could have argued that he was acting in place of the girl’s parents while she was at his home for the sleepover, prosecutors said.
Prosecutor Keith Kaneshiro advocates eliminating the “in loco parentis” exception, leaving only parents and legal guardians as exempted from the law.
“The ambiguity surrounding which individuals are exempt … would cease to exist,” his office said in written testimony.
The “in loco parentis” question has come up in several other promoting pornography cases in the past several years, in which prosecutors did not pursue prosecutions, they have said.
House Bill 1852 would remove the prurient interest requirement for minors, meaning prosecutors would only have to meet the “reasonable person” standard. They would have to show, in other words, that the pornographic material appeals to the prurient interest of a reasonable person, applying contemporary community standards.
“We want to protect ones who are very young,” Mark Tom, a deputy prosecutor, told Nishimoto and other members of the committee at Thursday’s hearing.
HB 1850 provides a definition for “in loco parentis” while HB 1851 addresses guardianship roles.
Nishimoto’s committee advanced all three measures.
The case involving the sleepover and another one in which the same man was accused of sexual misconduct against a young girl not only triggered the introduction of the Nishimoto bills but also prompted two private schools to take action against the man’s two sons.
Citing the disruption caused by reaction to the allegations, Punahou Schools expelled his 6-year-old son, a first-grader, several weeks ago. But a state judge forced Punahou to take back the boy after the mother sued.
The two sides settled the litigation this week, and the boy will be allowed to finish the semester at Punahou.
Following the man’s arrest in June, The Early School, where his younger son was enrolled, decided to dis-
enroll the family and ban the father from the school grounds.
The man, through his lawyer, has denied the allegations against him. He was not arrested or charged in the second case.
