State revisits prostitution statute after court ruling; prosecutors and public defender clash on scope

The Senate Judiciary Committee considered SB 1312 on Feb. 6, a bill that would clarify that "profits from prostitution" includes money or property accepted or received from proceeds of prostitution even if accepted as a reimbursement or repayment of a debt.

Deputy Attorney General Trisha Nakamatsu, appearing for the attorney general's office, said the bill responds to a 2023 Hawaii Supreme Court decision, State v. Avara, which the department said left a potential loophole: "this would essentially address a case... in which it was held that profits from prostitution did not include repayment of a loan." The deputy AG said traffickers could exploit that gap, for example by extending a loan for travel or housing and then demanding repayment in prostitution proceeds.

The public defender's office opposed the bill. William Bento said the Avara facts produced an "absurd result" in which two people came here as equals, one lent money to the other, they both participated in prostitution, and then one was prosecuted for receiving repayment. Bento said the proposed statutory language risks criminalizing consensual, reciprocal arrangements and urged the committee to refine the bill to avoid punishing prostituted persons who simply sought reimbursement.

Committee members repeatedly raised the Ibarra/Avara factual scenario as they sought to balance the Legislature's intent to target traffickers while avoiding penalizing victims or coerced individuals. One senator voiced concern that without a careful carve-out, "we're back to penalizing the prostitutes who just wanted her money back," noting the policy shift away from treating prostituted persons as criminals.

Nakamatsu said the department drafted the changes to close the loophole and indicated willingness to follow up with the committee on how the bill would interact with SB 292 (safe-harbor protections for survivors). The chair postponed further action on SB 1312, deferring it to a later hearing to allow additional review and negotiated changes.

The exchange underscored the challenge of defining trafficking and profits without re-exposing prostituted persons to criminal liability; sponsors flagged the need to balance prosecuting organized traffickers while protecting survivors and consensual arrangements among individuals.