By Vicki Viotti
It’s called the world’s oldest profession, and it’s not exactly a new phenomenon in little Waikiki, either.
What is new is that Honolulu is about to move under the white-hot glare of international attention, and prostitution is not exactly what Hawaii leaders want to have front and center.
The advent of the Asia-Pacific Economic Cooperation meeting in November has left Waikiki residents anticipating that the influx of some 20,000 attendees will create a surge in prostitution. And advocates for legislation to protect the victims of sex trafficking are afraid that the Waikiki sidewalk crowds will include some who were pressed into service against their will.
Kathryn Xian probably has the pressure of that impending event to thank for the legislation that finally was passed in the 2011 session, after years of her lobbying. Xian is director of advocacy for the Pacific Alliance to Stop Slavery, which this year pushed for passage of House Bill 240, the first measure that attempts to address the issue of sex trafficking in some way.
“We’ve been at this with them for six years,” Xian said. “The previous administration’s view was that if it (the law) was not broke, don't fix it. And also because the victims were viewed as part of the problem.”
HB 240 is still under review by Gov. Neil Abercrombie, who has until July 12 to sign it or veto it; otherwise it becomes law without his signature.
This measure wasn’t what Xian and other advocates first proposed, either this year or in previous years. What they wanted was the creation of a new section of law to deal expressly with sex trafficking, establishing a set of new criminal terminology in which the person drawn into the sex trade is defined as a victim, not as a prostitute.
But Xian’s complaints about the Linda Lingle administration notwithstanding, the current city prosecutor agreed with the former governor that the sex trafficking bill offered both in 2010 and 2011 was the wrong approach. New legal definitions often get challenged in court, Keith Kaneshiro said, so he found Lingle’s veto to be based on sound reasoning.
Instead, Kaneshiro’s staff worked with state Sen. Clayton Hee and other lawmakers to craft a bill aimed at working within tried and tested legal definitions.
“We thought, ‘Why don’t we try to take the concerns of the human-trafficking people and look at how we can address the concerns?’” he said. The result was a law that offered witness protection to those coerced into prostitution if they testify against those profiting from their work; hardened penalties against the people who got them into it; and toughened penalties for the “johns” who frequent prostitutes.
The term “sex trafficking” never appears in the bill.
Hee believes it will work, because it focused on the needs of people affected.
“It’s always one thing to construct laws in the abstract,” he said, “but this law resulted from real-life people sharing real-life examples.”
The Polaris Project is a national nonprofit that bird-dogs all the state legislation aimed at curbing the trafficking of youths and adults into the sex trade. In the eyes of its policy counsel, Hawaii is beginning a long trek upwards from the absolute bottom of the heap.
It's not taking a path the group generally prescribes, said Jim Dold, but maybe that's OK. Whatever works.
"Sometimes the best approach is just going in there and increasing penalties," Dold said. "Each state has its own issues, and each state is responding differently."
That charitable assessment aside, Polaris still officially has Hawaii listed as one of the "Dirty Dozen": the 12 U.S. states lacking in large measure the laws it favors as weapons in the war on sex trafficking.
It's hard to know how or whether Hawaii's grade will improve once the fate of House Bill 240, as well as some other measures, is decided. HB 240 is the primary measure dealing with the issue that passed in the recent legislative session, and it's unknown whether Gov. Neil Abercrombie will shepherd it finally into law.
The 2011 bill takes a different approach from legislation that passed last year, only to be vetoed by then-Gov. Linda Lingle. At that time lawmakers passed Senate Bill 2045, which created a new section criminalizing "sexual human trafficking."
The veto dismayed its advocates, but upon taking office, Honolulu City Prosecutor Keith Kaneshiro examined the issue and ultimately agreed with Lingle's reasoning.
"Using the word trafficking, we never had trafficking defined," Kaneshiro said. "And there's going to be all kinds of interpretation, so of course it's going to delay. It's going to go to the Supreme Court for a firm definition.
"It's in vogue to use the term, it's politically correct. That's the term that's going around, and everybody's using now," he added. "For us in the legal system, it may be in vogue but now it has to be tested. It's going to cause more problems for us."
Instead, Kaneshiro's staff worked with the Senate Judiciary Committee chairman — Sen. Clayton Hee — and other lawmakers to toughen up existing statutes that target the demand side of the prostitution problem, adding penalties for the "johns," as well as for those making the biggest profits.
Groups worried about the state's approach to human trafficking were uneasy that there was no terminology in law distinguishing the pimps for willing prostitutes from those engaging in what they view as a modern-day form of slavery. But Kaneshiro is resolute on that point.
"One of the things the human trafficking people wanted: ‘Can't you use, instead of calling it "promoting prostitution," can you call it "sex trafficking?"' And I said no. It's going to deflect from what we're trying to accomplish."
The focus of HB 240 is the "promoting prostitution" section of the statute, and if the bill becomes law, people who coerce or push people into prostitution through fraud will be considered to be committing the offense. These are people who are sex traffickers by another name, Hee said.
"This is the best effort by lawmakers to put together broad-based approach to sex trafficking," he added.
Hee's counterpart chairman in the House, Rep. Gilbert Keith-Agaran, agreed, but acknowledged that hardening the statutes won't be enough. Whether it's sex trafficking or any other kind of human trafficking — such as the Thai slave labor being prosecuted in federal court — better training of law enforcement and government agencies is an important component.
"One of the lawyers for the Thai laborers said one of the victims of trafficking at the farms went to an official at the labor department to complain, but (the official) didn't look into it any further," Keith-Agaran said.
The actual impact of legislative changes is hard to gauge, given that there are no clear numbers on trafficking to serve as a baseline. Kaneshiro said getting a better idea of the scale will be one job for his office.
Also unknown: whether providing witness protection to the victims of sex trafficking will help.
"For all these people who testify and say they're victims, not too many have come forward to say, ‘Can you come and prosecute the people who fostered this?'" Kaneshiro said.
Some people have their doubts. Tracy Ryan, who chairs the Libertarian Party of Hawaii and who has favored the legalization of prostitution, does not object to prosecuting those who are truly in the trade against their will or through misrepresentation of some kind.
But there are many cases of prostitutes who were convinced their pimp loves them, she said, and not many of them are willing to step up as witnesses for the prosecution.
Among her other objections are that prison populations and costs will increase; that few johns are repeat offenders, making the new "habitual solicitation" offense pointless; and that many offenders are engaging in a consensual act.
"The rational bases for the whole set of ideas is not supported by any real understanding of the sex industry and seems primarily aimed at pandering to the wishes of radical feminists who have zero expertise," she said in an emailed response to the Star-Advertiser.
One of the primary advocates of sex-trafficking legislation is Kathy Xian, and she takes exception to that characterization. Xian said her Pacific Alliance to Stop Slavery organization has intervened for six years on behalf of those she prefers to call "prostituted persons." Very little about what they do is consensual, she added.
"After you establish trust with them, they all say the same thing: ‘Nobody in their right mind would do this,'" Xian said.
"The unfair bias against women is the assumption that a woman would want to engage in prostitution," she added. "Reality says to us that that is not the case, but that these people have been relegated to a very small choice, and we would argue that it isn't a choice. These traffickers steal these girls' lives away."
Xian agreed that better statistics would help, but she predicted that new protections for victims will drive better prosecution.
"Come July 1 when they take effect we will see more traffickers come to justice," she said. "And we will see more victims come through our doors, so social services better get ready."