Legislators want state law changed so officers can't have sex during prostitution investigations

Legislators want state law changed so officers can't have sex during prostitution investigations
Published: Mar. 21, 2014 at 9:55 PM HST
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HONOLULU (HawaiiNewsNow) - Honolulu police are facing serious allegations of misconduct.  Undercover officers are being accused of having sex with the people they're investigating.

Prostitution is illegal in Hawai'i, but Honolulu police are currently exempt from prostitution laws if the officer is "acting in the course and scope of duties".

Angry lawmakers are threatening to revoke that immunity from prosecution after shocking testimony at the Capitol Friday morning.

"Most recently, I had a case in which my client had sex, intercourse, with three officers consecutively in one evening before she was finally arrested," described defense attorney Myles Breiner.  "She obtained a condom from one of the officers with their semen in the condom.  She demanded it be placed in evidence.  It never appeared in the police report.  It's not listed in evidence and it disappeared.  She plead out.  Where was the evidence of the sexual violation by the officer?  It disappeared," Breiner testified before the Senate Judiciary and Labor committee.

"The notion that police officers can engage in sexual relations with a prostitute -- the target of an investigation -- and then be absolved of responsibility is offensive," Breiner said.

Under Hawai'i's prostitution law, merely agreeing to pay a fee for sex can get you arrested but defense attorneys claim Honolulu officers are often crossing the line.

"What we've seen is that they use it selectively.  If the prostitute is 'quote unquote' unattractive or old, they just go with the agreement and there's no touching whatsoever," explained Timothy Ho, the Chief Deputy Public Defender.  "When we see prostitutes who are young or attractive, they engage pretty much as far as they can go with the prostitute before they give the pre-arranged signal to arrest the prostitute," Ho said.

Advocates for more humane treatment of prostituted workers say sex in the course of an investigation is an abuse of power and legally unnecessary.

"Successful investigations can and are made without officers engaging in sex with prostitutes.  It's something that is done in many other states," testified Sarah Schick, a Masters of Social Work candidate at the University of Hawai'i at Manoa.  "It's no mystery that many sex workers are victims of human trafficking.  They are forced, they are coerced into prostitution and this act only further traumatizes this victims while communicating that law enforcement cannot be trusted," Schick said.

Lawmakers agree.

"Police are going to have to be more creative than relying on special treatment in arresting prostitutes.  It's really mind-boggling that Hawai'i would allow police officers to engage in sexual penetration in the commission of an arrest of a prostitute," said Senate Judiciary and Labor committee Chair Clayton Hee.

Hee expressed frustration that Honolulu police were not at the hearing to answer any questions.

"I would note that HPD's absence is deafening.  I think that's a poor statement and the Chief of Police ought to be called to account for not having someone here to testify on a bill that exempts them in prostitution cases where sexual penetration is permitted by police officers," Hee said.

Controversy was sparked when Honolulu police testified against House Bill 1926 before the House Judiciary committee in February.

H.B. 1926 as it was originally written would have nullified the police exemption to state law, if the officer agrees to pay a fee for "sexual penetration or sadomasochistic abuse".

In a written statement, Honolulu Police Captain Jason Kawabata of the Narcotics/Vice Division testified current law "exempts law enforcement officers from the provisions of the law so that they may effectively conduct the undercover operations necessary to enforce it".

Capt. Kawabata went on to testify that "even if the intent of the amendment is merely to limit actual conduct by the officer, we must oppose it.  Codifying the limitations on an officer's conduct would greatly assist pimps and prostitutes in their efforts to avoid prosecution."

Advocates for more humane treatment of sex workers say police should be barred by law from having sex during an investigation. They say regardless of the officer's intent, police who perpetuate prostitution are further victimizing the suspect. 

"There is no reason for law enforcement to use sexual penetration during the course of prostitution or sex-trafficking investigations," said Kathryn Xian of the Pacific Alliance to Stop Slavery.  "Doing so opens the door to police misconduct and sexual assault of victims, while also hindering investigation of misconduct when it does occur," Xian said. 

The Department of the Prosecuting Attorney of the City and County of Honolulu testified in support of law enforcement agencies' concerns about dropping the exemption that protects officers.  In written testimony provided by the City Prosecutor, officials argued removing the current immunity for officers places them at risk of criminal liabilities if a prostitute "cop checks" police by "ensuring there is penetration of her genitals by a part of the officer's body, which includes his or her hands". 

Critics disagree.  

"None of the survivors with whom I've worked have ever 'cop checked' a man to see if he was a law enforcement officer," said Xian.  "Pimps routinely tell victims, especially children, that police will take advantage of them, which this lapse in our law invites cops to do."

House Judiciary committee Chair Karl Rhoads said legislators determined HPD's concerns were legitimate enough to revise H.B. 1926 and the police protections were restored. 

"You only get an out under the longstanding current policy if you're inside the scope of your duties.  It doesn't say that any police officer can have sex with a prostitute, it just says that if you're in the scope of your duties and that probably means pretty narrowly drawn -- you're in Narco/Vice, you're on a sting, and then it gets murky," explained Chair Rhoads. 

Rhoads says the intent of H.B. 1926 is to tighten up enforcement and create stricter penalties for "pimps" and Johns.  He says he does not recall anyone testifying before his committee that undercover officers were having sex with the people they were investigating.

"I don't think it's okay, but my guess is the police don't think it's okay either.  If we were privy to their internal policies, my guess is it's not allowed.  What they're afraid of is if they tell everybody what they're internal policies are then people who are the objects of the stings will be -- they'll know exactly what to ask and they'll know instantaneously that they're dealing with a police officer -- and then the whole thing, enforcement becomes that much more difficult," Rhoads said.

The immunity provision for police House members restored may be short-lived.  Following Friday's testimony before the Senate Judiciary and Labor committee, Chair Hee says he intends to change state law so police officers can no longer have sex with a suspect in order to investigate prostitution.

A final decision will be made Friday, March 28. 

Honolulu Police released the following statement Friday:

Recent news reports claimed that the Honolulu Police Department urged lawmakers to keep an exemption in state law that allows undercover officers to engage in sex with prostitutes. This statement is misleading and inaccurate.

First and foremost, the HPD asked the legislature to keep the existing language in the exception. The HPD did not ask for permission to engage in sexual conduct with prostitutes.

Under Hawaii law (HRS Section 712-1200), merely agreeing to pay a fee for sexual conduct constitutes a violation of the statute thus, the exemption for police officers is necessary so they can conduct prostitution investigations.  If there was no exemption, officers would not be able to respond to a verbal offer from a suspected prostitute.  This does not mean that officers are allowed to engage in sexual penetration.

The HPD has never asked the legislature to allow officers to engage in sex with prostitutes.  When HB 1926 was originally drafted, it contained language that allowed the law enforcement exemption UNLESS "the act" involved sexual penetration or deviate sexual intercourse.  It was poorly worded so the department asked the committee to omit that sentence, or our officers would not have been able to respond to even a verbal offer of sexual intercourse from a suspected prostitute - one of the most common prostitution violations.  The request was NOT made to allow officers to engage in sexual penetration.   If we were to codify these rules, we would be publicly revealing specific undercover officer guidelines and Hawaii's prostitutes, "pimps," and johns would be able to use the information to avoid prosecution and continue their illegal activity. 

The department is keenly aware that prostitutes are often victims of human trafficking or other offenses.  Because of this, we work closely with the Hawaii Coalition Against Human Trafficking and other community groups.  Our goal is to conduct fair, accurate investigations, taking into consideration the need for prosecution as well as the need to protect the innocent.  To accomplish this, we maintain careful oversight of all prostitution cases.  There are strict written guidelines to regulate the conduct of officers conducting prostitution investigations.  

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