Prostitution Requires a Sexual Favor, a fee, and a Nexus Between the fee and the Favor.

State v. Xiao (HSC May 25, 2010)

Background. Xiao was charged with prostitution, i.e. sexual conduct with another for a fee. HRS § 712-1200(1). At her trial, Officer Wagner testified. He was undercover and went to Club Sara Lee, a bar in HNL. There he saw Xiao as he did on previous occasions. He was in a karaoke room with others. Xiao approached him and asked him for a drink. Officer Wagner asked her if there was anything other than the $20.00 drinks. She said, yes, there were $40.00 drinks. Officer Wagner told her to buy herself one and gave her $40. When she came back, she put the drink down and they started dancing. They were dancing slow and close. According to Officer Wagner, Xiao rubbed her pelvis against his erect penis. When they were done dancing they sat together. She rubbed his thigh while they made "small talk." He bought her another $40 drink. She came back and they danced again in the same way, but for a longer period of time. At one point, she "squatted and rubbed her breasts" against Officer Wagner's penis. All in all, there were two dances, and Officer Wagner bought her more than two $40 drinks. The State rested and Xiao's motion to acquit was denied. Xiao remained silent and the district court found her guilty as charged. Xiao appealed and the ICA affirmed.

"Fee" is more than Money. A person engages in prostitution when the person "engages in, or agrees or offers to engage in, sexual conduct with another person for a fee." HRS § 712-1200(1). "Sexual conduct" includes "sexual contact," which means "any touching . . . of sexual or other intimate parts of a person not married to the actor" or the sexual or intimate parts of the actor by the other person. HRS §§ 712-1200(2) and 707-700. According to the HSC, Xiao's dancing clearly constituted "sexual conduct." The only question was whether the dance was "for a fee." The HSC noted that the term "fee" was undefined. Undefined terms allow the court to resort to legal dictionaries or other well-accepted sources in order to ascertain their meaning. State v. Chen, 77 Hawai'i 329, 337, 884 P.2d 392, 400 (App. 1994). According to the HSC, the prostitution statute was similar to the solicitation statute at issue in Muse v. United States, 522 A.2d 888 (D.C. 1987). There, the D.C. appellate court held that the word "fee" means a "payment in return for professional services." Id. at 890. The D.C. court also held that "fee" includes money or any other "material gain." Id. at 890-91. The HSC adopted this definition and held that a "fee" under the prostitution statute constitutes "money or a 'material gain' for sexual conduct." So, concluded the HSC, the forty-dollar drink can be considered a "fee."

No Evidence of the Transaction Proved Fatal to Prostitution Conviction. The prostitution statute "is triggered by a sale of sexual services." State v. Tookes, 67 Haw. 608, 614, 699 P.2d 983, 987 (1985). To "sell" is "to persuade or induce someone to buy[.]" Webster's Encyclopedic Unabridged Dictionary of the English Language (1989) at 1262. According to the HSC, to affirm Xiao's conviction, there had to be "evidence of an understanding on the part of Xiao that the forty-dollar drink (i.e. the 'fee') paid for by Officer Wagner was to buy sexual favors from her." There wasn't. The HSC rejected the State's argument that there was circumstantial evidence of Xiao's understanding that drinks were related to her dancing. True, the drinks were followed by dances, but the HSC noted that she did not ask Officer Wagner to dance after he bought more drinks. Officer Wagner also admitted to buying more than just two drinks. Under these circumstances, the HSC held that there was insufficient evidence to convict Xiao and reversed the district court.

What's so Funny about Peace, Love, and "Understanding"? It appears that the HSC's formulation of the prostitution statute requires proof of a fee, sexual conduct, and an understanding by the defendant that the fee was in exchange for the sexual conduct. In this case, there was no direct evidence of such an understanding, and there seldom is. A person's mental state is almost always proven with circumstantial evidence. See State v. Gomes, 117 Hawai'i 218, 227, 177 P.3d 928, 937 (2008) ("although a defendant's state of mind can rarely be proven by direct evidence, proof by circumstantial evidence and reasonable inferences arising from circumstances surrounding the defendant's conduct is sufficient"). But even here, there was still not enough evidence given the erratic pattern between the drinks and the dances. Drawing that line will be harder in the future. What would be adequate evidence of the defendant's understanding that the "fee" was for the sexual conduct? We can't be sure.

Justice Acoba's Concurrence and Dissent. Justice Acoba took issue with the HSC's interpretation of the word "fee." Justice Acoba called for a strict construction of the ambiguous and undefined word "fee" based on the rule of lenity. State v. Bayly, 118 Hawai'i 1, 15, 185 P.3d 186, 200 (2008); State v. Aiwohi, 109 Hawai'i 115, 129, 123 P.3d 1210, 1224 (2005). Justice Acoba also noted that a statute "must give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited so that he or she may choose between lawful and unlawful conduct." State v. Gaylord, 78 Hawai'i 127, 138, 890 P.2d 1167, 1178 (1995). Finally, words must be read based on their common meaning. HRS § 1-14. Relying on these authorities, Justice Acoba believed that a "fee" should be limited to money or property, and nothing more. The majority, wrote Justice Acoba, offered no guidance for the phrase "material gain," which is problematic. "[W]here we are called upon to define an already ambiguous term, we should refrain from interpretations that serve only to produce another layer of ambiguity." For Justice Acoba, a drink is neither money nor property. And so Justice Acoba agreed that the conviction should be reversed--not for insufficient evidence of an understanding--but for no evidence of a "fee."