Soliciting Undercover Cops (or Anyone else) is not a Crime.

State v. Espinosa (ICA April 30, 2009)

Background.  Espinosa went up to an undercover police officer posing as a prostitute on the corner of Kukui and A'ala streets in Honolulu.  He offered the officer $40 in exchange for "anything and everything," which was street vernacular for sexual intercourse.  Espinosa was charged with solicitation, his motion to dismiss was denied, he was found guilty, and he appealed.

The Parallel Prostitution Statute.  A person commits street solicitation when the person, within Waikiki, public property, or any area designated by the county as a "zone of significant prostitution-related activity" "offer[s] or agree[s] to engage in sexual conduct with another person in return for a fee."  HRS § 712-1207.

The words "in return for a fee" were originally included in HRS § 712-1200, the prostitution statute.  The prostitution statute was challenged on unrelated equal protection issues in State v. Tookes, 67 Haw. 608, 699 P.2d 983 (1985).  The HSC upheld the constitutionality of the prostitution statute and stated that Legislature's "decision to target punishment on the seller of a prohibited service [as opposed to buyers]" did not violate equal protection clauses at issue.  Id. at 614, 699 at 988.  After Tookes it was amended to delete the words "in return for" to clarify that buyers of a prostitute's services are also guilty of violating the prostitution statute.

The ICA held that because the solicitation statute--which was enacted after Tookes and after the amendment to the prostitution statute--included the words "'in return for a fee' . . ., the legislature intended to exclude a patron of a prostitute, such as Espinosa, from criminal liability under the statute."

Chief Judge Recktenwald's Concurrence.  Chief Judge Recktenwald believed that HRS § 712-1207 was ambiguous on its face as to whether it applied to patrons of prostitutes.  Because the language is unclear, Chief Judge Recktenwald wrote that the statute must be read in pari materia, i.e. it must be read with reference to statutes covering the same subject.  Baurenfiend v. AOAO Kihei Beach Condominiums, 99 Hawai'i 281, 283, 54 P.3d 452, 454 (2002).  In doing so, HRS § 712-1207, the similar prostitution statute, included the phrase "in return" and was enacted after HRS § 712-1200 was amended--as discussed by the majority.  Given that history, wrote Chief Judge Recktenwald, "the inclusion of the phrase 'in return' in HRS § 712-1207 reflects legislative intent not to extend the prohibition of the statute to the patron."  That's because "the legislature is presumed to know the law when enacting statutes."  Agustin v. Dan Ostrow Const. Co., Inc., 64 Haw. 80, 83, 636 P.2d 1348, 1351 (1981).

Distinction without Difference?  It is difficult to see whether the majority and Chief Judge Recktenwald have any disagreement.  Maybe they don't.  Perhaps Chief Judge Recktenwald did nothing more than clarify the majority's analysis.  The concurrence not only agrees with the holding of the majority, but it also appears to find no fault with the majority's analysis.  Chief Judge Recktenwald first concluded that the statute was ambiguous on its face.  The majority made no such conclusion, but explored the legislative history of a related statute.  Chief Judge Recktenwald also expressly read the solicitation statute in pari materia.  The majority again made no express conclusion, but obviously found the interpretation and history of the related statute relevant to its discussion.  On the flip side, the majority discussed Tookes but Chief Judge Recktenwald did not even though  Tookes certainly could be considered part of an in-pari-materia analysis.

A Victory for  Johns?  Not quite.  Two things stand in their way.  First, this is the solicitation statute, not the corrected prostitution statute.  A john could easily be prosecuted for prostitution even though it would be a misnomer.  After all, the amended statute was made to include johns as well as prostitutes.  Second, the Legislature is surely going to react to this case and amend the soliciation statute just as it did with the prostitution statute.  Only after the amendment or a prosecution for prostitution can a john challenge the validity of the amended languge.  The amended language has not been examined by the appellate courts.  For all we know, the amendment still does not accomplish the purpose of criminalizing the buyer as well as the seller.  That question is left for another case.