Reimbursement of costs associated with prostitution are not “profits” under the promoting statute

 State v. Ibarra (HSC March 15, 2023)

Background. Paola Ibarra was charged with sex trafficking and kidnapping with a male co-defendant Gustavo Ferreira. At trial, Ibarra and the complainant testified they flew from Oakland, California to Honolulu on Halloween. He paid for their airfare and hotel in Waikiki. The complainant testified that they were going there for her to “strip and dance” and that she was going to repay Ibarra for the airfare and hotel as she made money in Hawai'i. Ibarra called it a “paycation,” in which they were getting paid while being on vacation. The complainant’s friend, Samantha King, testified that the complainant was “fully” aware she was going to Hawai'i to engage in prostitution in addition to stripping and dancing.

 

They get to Hawai'i and Ibarra puts out prostitution advertisements for the complainant on the website Backpage. He posted photographs of the complainant. The complainant testified she brought two cell phones and set her own prices for prostitution dates. Ibarra testified she would go on the dates together for safety but did not engage in sex acts with customers. The complainant testified she went on two or three of these dates. She testified that it was her choice to answer the phone, make dates, set prices, and engage in sexual acts for money. She was not scared of Ibarra and had a good time in Hawai'i.

 

That changed when Ferreira joined them on November 3. The complainant testified that “the vibe chang[ed].” All money went directly to him after that. The jury found Ibarra guilty of the included offense of promoting prostitution in violation of HRS § 712-1203(1). Ibarra moved for a judgment of acquittal after the verdict or a new trial as an alternative. Ibarra argued that there was insufficient evidence showing that that she “advanced” or “profited” from the prostitution as defined in HRS § 712-1201(1). The circuit court, with the Honorable Judge Shirley M. Kawamura presiding, denied the motion. Ibarra was sentenced to probation and required to register as a sex offender. She appealed and the ICA affirmed.

 

Promoting prostitution requires proof of advancing or profiting from prostitution. The issue came down to interpreting the prosecution statutes. A person commits the offense of promoting prostitution when the person “knowingly advances or profits from prostitution.” HRS § 712-1203(1).

 

A person “advances prostitution” if, acting other than as a prostitute or patron of a prostitute, the person knowingly causes or aids a person to commit or engage in prostitution, procures or solicits patrons for prostitution, provides persons for prostitution purposes, permits premises to be regularly used for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution.

 

HRS § 712-1201(1).

 

The issue was whether there was sufficient evidence that Ibarra “profited” from the complainant’s prostitution. A person “profits” when the person “accepts or receives money or other property pursuant to an agreement or understanding with any person whereby the person participates or is to participate in the proceeds of prostitution activity.” HRS § 712-1201(2).

 

Reimbursement is not “profiting” from prostitution. The HSC held that the circuit court erred in finding that fronting the expenses of the airfare and hotel and being reimbursed was “profiting.” According to the HSC, the circuit court did not take into account the term “profit,” which means “a valuable return,” “gain,” or “the excess of returns over expenditure in a transaction or series of transactions.” HRS § 712-1201(2). The HSC explained there must be some kind of benefit or receipt of something of value for it to be a “profit.” According to the HSC, reimbursement is not a “profit.”

 

The HSC buttressed this holding by examining the legislative intent of HRS §§ 712-1203 and 712-1201. Courts can look to legislative intent “in order to discern the underlying policy [that] the legislature sought to promulgate in the enactment of the statute.” O’Grady v. State, 141 Hawai'i 26, 28, 404 P.3d 292, 294 (2017). The legislative history revealed that the statute is aimed at criminalizing “traffickers and pimps” who benefit most from prostitution.

 

“Profiting” also requires an “agreement or understanding.” The HSC also took issue with the words “agreement or understanding” in HRS § 712-1201(2). The “understanding” between Ibarra and the complainant was that the complainant would reimburse Ibarra for the airfare and hotel rooms and that Ibarra knew she would get reimbursed. There was no “agreement or understanding” that Ibarra would benefit from the prostitution. And so the HSC reversed the conviction because the circuit court should have granted the motion for a judgment of acquittal.

 

Chief Justice Recktenwald’s dissent. The Chief Justice believed that the plain language and legislative history of HRS §§ 712-1201(2) and 712-1203 penalizes any agreement or understanding to receive proceeds from prostitution—whether it was for reimbursement or not. He also worried about the ramifications of the majority’s interpretation:

 

Considering the dynamic of economic coercion in trafficking relationships, I am concerned that the majority’s interpretation unintentionally creates a safe harbor for traffickers who have extended a loan or a service to their victims but have not yet “profited” from the arrangement.

 

The Chief Justice cited the “general rule of construction” that courts “are bound to follow legislative definitions of terms rather than commonly accepted dictionary, judicial or scientific definitions.” State v. Kantner, 53 Haw. 327, 329, 493 P.2d 306, 308 (1972). The Legislature defined “profits from prosecution” to mean accepting or receiving property based on an agreement or understanding to share those proceeds from another’s prostitution. This definition, according to the CJ, broadens the term “profit” to include reimbursements. Justice Nakayama joined.