Lead Opinion
We hold that Defendant-Appellant Pame Ann Mary Leilani Romano (Defendant) has not established, as she argues on appeal, that (1) “[Plaintiff-Appellee State of Hawai'i (the prosecution) ] failed to support a prima face [sic] case of prostitution because the [prosecution] failed to prove ... that Defendant was not a law enforcement officer,” (2) “the [prosecution] failed to present sufficient evidence to support a prima face [sic] case of prostitution,” (3) “there was insufficient evidence adduced to support a finding of guilt,” and (4) “Lawrence v. Texas[,
I.
A.
Trial began on August 13, 2003, and the evidence following was adduced. On January 18, 2003, Officer Jeffrey Tallion was on duty with the Narcotics/Vice Division of the Honolulu Police Department Morals Detail. He testified he was on assignment investigating prostitution in the Waikild area. Tallion related that the investigations involved “checking into hotel rooms and then ... either go[ing] on to the street or ... set[ting] up appointments either in the telephone book or ‘Pennysaver,’ ‘Midweek,’ or internet cases.”
In preparation for his undercover operation, Tallion obtained a hotel room at the Aston Waikiki Beach Hotel and dressed in civilian clothes. He browsed through the “Pennysaver” newspaper and called the phone number on a massage advertisement. When Defendant answered the phone call, Tallion asked if she did “out calls.” At this time, there was no discussion of any illicit conduct or sexual acts.
Tallion set up an appointment with Defendant and they met on the street in front of the Aston Waikiki Beach Hotel, but then moved to Tallion’s hotel room. In court, Tallion positively identified Defendant as the individual he met outside on January 18, 2003.
Upon arriving in the room, Tallion confirmed that the price of an out call was $100 and then asked Defendant whether “she did anything else.” Defendant responded, “Like what? Dance?” Tallion responded, “No,” so Defendant asked, ‘Well, what do you have in mind?”
Tallion then answered, “Well, I was referring to a blowjob.”
Following Defendant’s reply, Tallion “gave a pre-determined signal” and the arrest team
Tallion testified that he had been with the Morals Detail for three years; he was involved in 400 prostitution cases in 2002 as either the undercover or arresting officer; maybe five of the prostitution eases were initiated from “Pennysaver” ads; and after the talk about “handjob,” Defendant added $20.00 to her quoted $100.00 charge for the out-call service. On cross-examination, Tal-lion recounted that he found Defendant’s advertisement in “Pennysaver’s” Massage/Aeu-puncture Section and not the Adult Section. He also related that “hands only” could have meant what a masseuse actually does.
In his testimony, Lurbe testified that he arrested Defendant for prostitution on January 18, 2003, after being “informed by [Tal-lion] that he [had] obtained a prostitution violation from [Defendant], which was assisted masturbation for $20.” On cross-examination, Lurbe indicated that Tallion notified him of the violation via cellular’ phone.
Following Lurbe’s testimony, the prosecution rested. Defendant moved for a continuance “to subpoena, investigate and talk to witnesses who were in the room adjoining this, this room.” Over the prosecution’s objection, the court continued the case to August 26, 2003.
B.
On August 21, 2003, Defendant filed a “Motion to Dismiss.” In the memorandum attached to the motion, Defendant asserted that Lawrence “invalidate^] Hawaii’s prostitution statutes [and] thus[,] the [prosecution’s] case [against Defendant] must necessarily fail.”
At the start of the proceedings held on August 26, 2003, Defendant moved for a judgment of acquittal, arguing that the prosecution had failed to prove (1) that there was an offer and agreement to engage in sexual conduct for a fee; and (2) that Defendant was “not a police officer, a sheriff, works for the sheriffs department or law enforcement acting in the course or scope of her duties.” After hearing from the prosecution, the court denied Defendant’s motion.
Defendant’s “Motion to Dismiss” was then heard. The court denied the motion, stating that it “[did] not agree with the applicability of [Lawrence ] to the instant situation.”
Defendant took the witness stand in her own defense and testified that she was a self-employed license massage therapist, she had been a licensed massage therapist for “19 years, going on 20” and her license was current and up-to-date on January 18, 2003. She testified that she placed her ad under the “Body, Mind and Spirit,” “Massage,” or “Health and Fitness” sections and not under the “Personal” or “Adult” sections.
Defendant also recounted that on January 18, 2003, Tallion immediately asked for a blow job when she entered the hotel room. She explained that she was “caught off guard” because she was “not the typical person that men want this from,” as she was “overweight” and “old.”
She reported that after Tallion asked for the “blow job,” she put her hands up and stated, “Hey, I only do hands only.” She also declared that she was shaking her head “no” at the same time. Defendant then indicated that Tallion repeated his question again and also asked how much it would cost. Defendant again said, “No, hands only.” Defendant also maintained that Tallion was “loud,” “demanding,” and “boisterous.”
After Defendant repeated “hands only” again, Tallion asked about handjobs. Defendant claims that she had no intent to commit any kind of sexual contact with Tallion. She explained that she only gave Tallion a figure of $20 because she felt threatened and because of Tallion’s loud demands. She then testified about a 1983 incident where “[she] got beat up real bad by this person who [she] had gone' to for a job for telephone soliciting.”
On cross-examination, Defendant admitted that she “couldn’t remember [the conversation between Tallion and herself] word for word.” She also stated that Tallion did not block her way to the door leading to the hallway, Tallion did not tell her she could not leave the room, and she did not attempt to
Following Defendant’s testimony, the defense rested. The court found Defendant guilty of the charged offense. Defendant was sentenced to six months’ probation and fined $500.00. Judgment was entered on August 26, 2003. Imposition of sentence was continued for thirty days for perfection of appeal.
The court instructed the prosecution to prepare written findings of facts and conclusions of law. The “Findings of Fact, Conclusions of Law, and Order Finding Defendant Guilty After Jury-Waived Trial” were filed on September 26, 2003. Notice of appeal was filed on September 19, 2003.
II.
As noted previously; Defendant raised four issues on appeal.
In Nobriga, the defendant was cited under Revised Ordinances of Honolulu (ROH) § 7-2.3 (1990),
The ICA also indicated “the burden of proving exceptions to a criminal statute appear to be codified in the Hawai'i Penal Code” pursuant to HRS §§ 701-114(1)(a) (1985) and 702-205 (1985). Id. at 358,
In regard to the penal code requirements, the ICA reiterated that the prosecution “has the initial burden of negativing statutory exceptions to an offense only if the exceptions are incorporated into the definition of the offense.” Id. at 359,
III.
Applying the foregoing formulation, the enacting clause for the offense of prostitution is HRS § 712-1200(1), because this clause “contains the general or preliminary description of the acts prohibited; i.e., proscribes the offensive deed.” State v. Lee,
As the exception in HRS § 712-1200(5) would negative the prostitution offense, it constitutes a defense. See Nobriga,
IV.
As to issue (2), the prosecution must prove every element of a crime charged and the burden never shifts to the defendant. Territory v. Adiarte,
As indicated previously, HRS § 712-1200(1) provides in relevant part that prostitution is committed “if the person ... agrees ... to engage in ... sexual conduct with another person for a fee.” Under HRS § 712-1200(2), “sexual conduct” includes “sexual contact,” as that term is “defined in section 707-700.” In pertinent part, “sexual contact” meant any “touching of the sexual or other intimate parts of a person not married to the actor[.]” HRS § 707-700.
The evidence demonstrated that Defendant agreed to give Tallion a “handjob” for a fee of $20.00. Tallion confirmed with Defendant that the charge for the “out-call” was $100.00. When Tallion said, “So no blowjob, so handjob,” Defendant responded, “Yah, I can do that.” Tallion then asked whether “that cost extra,” and according to Tallion, Defendant answered, “Add 20.” Tal-lion testified he confirmed, “Oh, $20 for handjob,” and Defendant replied, “Yes.” This testimony indicates that the $20 added fee was
Defendant argues that agreement for a handjob does not necessarily involve sexual conduct. She contends that Tallion never defined “assisted masturbation” and that although Tallion equated a “handjob” with sexual contact, he did admit that another licensed masseuse had given him a hand massage and, thus, the meaning of “handjob” is not always sexual in nature. The phrase “assisted masturbation” would appear susceptible to common understanding. “Masturbation” is defined, inter alia, as “the stimulation, other than by coitus, of another’s genitals resulting in orgasm.” Random, House Dictionary of the English Language 883 (Unabr. ed.1973). Genitals describe “the reproductive organs, especially the external sex organs.” The American Heritage Dictionary of the English Language (4th ed.2000), available at http://www.bartleby. com/61/.
Tallion testified that “ ‘[hjandjob’ is street vernacular commonly used in prostitution for assisted masturbation.” Defendant also testified that she knew that the term “handjob” could mean assisted masturbation.
V.
As to issue (3), HRS § 702-231 (1993) provides in relevant part:
Duress. (1) It is a defense to a penal charge that the defendant engaged in the conduct or caused the result alleged because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
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(5) In prosecutions for any offense described in this Code, the defense asserted under this section shall constitute an affirmative defense. The defendant shall have the burden of going forward with the evidence to prove the facts constituting such defense, unless such facts are supplied by the testimony of the prosecuting witness or circumstance in such testimony,*8 and of proving such facts by a preponderance of the evidence pursuant to section 701-115.
(Emphases added.)
“The preponderance standard directs the factfinder to decide whether ‘the existence of the contested fact is more probable than its nonexistence.’ ” Kekona v. Abastillas,
Defendant contends her claims “meet the elements of the affirmative defense of duress by a preponderance of evidence.” She argues that because the duress claim was “unchallenged by the [prosecution] or the [c]ourt[,] preponderance of the evidence is indeed established.” However, the court considered Defendant’s affirmative defense of duress and concluded that Defendant did not meet her burden.
Specifically, in its oral finding, the court stated, “[A]s far as the duress defense, the burden—it becomes an affirmative defense and the burden then shifts to the [Defendant to prove that the duress did in fact occur by preponderance of the evidence, which the [c]ourt does not feel the [Defendant has met that burden.” In its written findings, the court found “Defendant failed to present an adequate defense to the charge.” “ ‘A trial court’s findings of fact are reviewed under the clearly erroneous standard.’ ” State v. Keliiheleua,
“ ‘A finding of fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made.’ ” Foo v. State,
Defendant related that Tallion was “loud” and “demanding” and she only agreed to Tallion’s request for a “handjob” because she felt threatened. However, upon cross-examination, Defendant conceded that (1) Tallion had not blocked her egress from the hotel room; (2) Tallion was not holding a weapon when he asked about the “blowjob”; (3) Tal-lion never told her that she could not leave the room; and (4) she never attempted to use the phone or walk out of the room.
Matters of credibility and the weight of the evidence and the inferences to be drawn are for the fact finder. See Agard,
VI.
As to Defendant’s last issue, the dissent agrees with Defendant and argues that (1) “at the time of this court’s holding in [State v. Mueller,
VII.
The dissent’s first position is not tenable because it runs into the specific qualification in Lawrence that excludes prostitution as part of protected “liberty” under the federal due process clause.
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve p-ublic conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, rvith full and mutual consent from each other, engaged in' sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean them existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.
Additionally, despite this clear exclusion, the dissent argues that a logical extension of Lawrence precludes the states from exercising their police power to curb prostitution.
[W]here two consenting adults swap money for sex in a transaction undertaken entirely in seclusion, the analysis of the Lawrence majority, despite the majority’s attempt to avoid the notion, leads inexorably to the conclusion that the state may not exercise its police power to criminalize a private decision between two consenting adults to engage in sexual activity, whether for remuneration or not.
Dissenting opinion at 18,
Furthermore, the dissent misreads Lawrence. As mentioned above, prostitution, i.e., “swap[ping] money for sex,” dissenting opinion at 18,
Assuming, arguendo, that “Lawrence presupposed private sexual activity between two adults fully capable of giving valid consent[,]” dissenting opinion at 23,
VIII.
In Lawrence, the Court reconsidered its earlier holding in Bowers v. Hardwick,
First, the fact that the governing majority in a State has traditionally vieived a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even ivhen not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.
Bowers,
Thus, Lawrence invalidated a criminal statute prohibiting the “particular practice” of sodomy because it involved the “intimacies of ... physical relationship” and such “intimate choices” should be left to unmarried as well as married persons. Id. at 577-78,
As to the dissent’s second position, in our view Lawrence as construed above does not vitiate the holding in Mueller. In Mueller, the defendant was charged with “engag[ing] in, or agreeing] to engage in, sexual conduct with another person, in return for a fee, in violation of [HRS § ] 712-1200[,]”
Unlike in the instant case, in Mueller “the activity in question took place in [defendant’s] apartment, the participants were willing adults, and there were ‘no signs of advertising!,] ’ ”
X.
As to the right of privacy in article I, section 6 of the Hawai'i Constitution, the Mtieller majority noted that (1) “a party challenging the statute has the burden of showing unconstitutionality beyond a reasonable doubt[,]” id. at 627,
Mueller is precedent. “Precedent is an adjudged case or decision of a court, considered as furnishing an example of authority for an identical or similar case af-terwards arising or a similar question of law[ ] ... and operates as a principle of self-restraint ... with respect to the overruling of prior decisions.” State v. Garcia,
While not having like “force ... in the context of constitutional interpretation,” id. at 206,
Consequently, “a court should not depart from the doctrine of stare decisis without some compelling justification.” Id. at 206,
There is no denying that “ ‘[w]hile the outer limits of this aspect of privacy have not been marked by the Court [or this court], it is clear that among the decisions that an
The light to privacy has been expanded by the Court in discrete situations. See, e.g., Kyllo v. United States,
This court has also extended privacy rights under our own constitution. See, e.g., State v. Cuntapay,
Thus conduct once denominated criminal has later been afforded constitutional protection under the privacy umbrella. See, e.g., Kyllo,
XI.
Mueller acknowledged the resiliency of prostitution laws as noted by the drafters of
XII.
It may be that non-injurious sexual conduct by consenting adults in a private place for a fee preceded by (veiled) public advertising may one day be drawn into the protective shelter of Hawaii’s privacy provision, as has other conduct once thought of as illegal. But “[t]he sum of experience,” id., as elucidated in the penal code presently, seems to the contrary. See supra note 13; cf. Janra Enters., Inc. v. City & County of Honolulu,
Of course the legislature may alter the law to allow non-injurious sexual contact by consenting adults in a private place for a fee, conduct that is presently proscribed by HRS § 712-1200(1). For,
[a]s a general rule, the role of the court in supervising the activity of the legislature is confined to seeing that the actions of the legislature do not violate any constitutional provision. We will not interfere with the conduct of legislative affairs in absence of a constitutional mandate to do so, or unless the procedure or result constitutes a deprivation of constitutionally guaranteed rights.
Schwab v. Ariyoshi,
XIII.
Based on the foregoing, the court’s August 26, 2003 judgment is affirmed.
Notes
. The Honorable Faye Koyanagi presided.
. HRS § 712-1200(1) states that "[a] person commits the offense of prostitution if the person engages in, or agrees or offers to engage in, sexual conduct with another person for a fee.” HRS § 712-1200(2) defines “sexual conduct,” inter alia, as "sexual contact.” HRS § 707-700 (1993) defined sexual contact as:
[A]ny touching of the sexual or other intimate parts of a person not married to the actor, or of the sexual or other intimate parts of the actor by the person, whether directly or through the clothing or other material intended to cover the sexual or other intimate parts. The definition of sexual contact in HRS § 707-700 was amended in 2004, see Haw. Sess. L. Act 61, § 3 at 303, by adding the phrase "other than acts of 'sexual penetration’ ” after "any touching” in the first sentence. The amendment does not affect our analysis in this case.
.In State v. Lunceford,
. The prosecution answered (1) the prosecution did not have to prove that Defendant was a law enforcement officer acting in the course and scope of her duties, (2) there was sufficient evidence adduced at trial to support Defendant's prostitution conviction, (3) Defendant failed to prove by a preponderance of the evidence that she acted under "duress" when she agreed to engage in sexual conduct with Tallion for a fee, and (4) Hawaii’s prostitution statute is not rendered unconstitutional by Lawrence.
Defendant reiterated in her reply brief that the application of HRS § 712-1200 to this case was unconstitutional. We must note that it appears a substantial part of the reply brief corresponds verbatim to the published opinion of the New York City Family Court in In re P.,92 Misc.2d 62 ,400 N.Y.S.2d 455 , 462-65, 467-69 (N.Y.Fam.Ct.1977), rev'd,68 A.D.2d 719 ,418 N.Y.S.2d 597 , 605 (N.Y.App.Div.1979).
. Further, the ICA noted that the general rule does not apply “when the facts hypothesized in the exceptive provision are peculiarly within the knowledge of the defendant, or the evidence concerning them is within the defendant's private control." Nobriga,
.ROH § 7-2.3 provides, in pertinent part, that "[i]t is unlawful to be the owner of an animal, farm animal or poultry engaged in animal nuisance as defined in Section 7-2.2.” ROH § 7-2.2 (1990) defines "Animal nuisance,” partly, as follows:
"Animal nuisance,” for the purposes of this section, shall include but not be limited to any animal, farm animal or poultry which:
(a) Makes noise continuously and/or incessantly for a period of 10 minutes or intermittently for one-half hour or more to the disturbance of any person at any time of day or night and regardless of whether the animal, farm animal or poultry is physically situated in or upon private property!)]
. ROH § 7-2.4(a) (1990) provides that "[n]othing in this article applies to animals, farm animals or poultry raised, bred or kept as a commercial enterprise or for food purposes where commercial kennels or the keeping of livestock is a permitted use."
. Moreover, it may be noted that if Defendant was a law enforcement officer, this fact would be peculiarly within Defendant’s knowledge or the evidence of such within Defendant's private control.
. Tallion also testified he had never been married to Defendant and he had never "lived together as man and wife with [Defendant]." See supra note 2 defining sexual contact.
. On cross-examination, the prosecution asked Defendant, "Did you know that 'handjob' could mean assisted masturbation?” and she replied in . the affirmative.
. Contrary to the dissent's statement, see dissenting opinion at 18,
. The Georgia statute criminalizing sodomy at issue in Bowers, Georgia Code Ann. § 16-6-2 (1984), provides in pertinent part:
(a) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another....
(b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years[.]
. Mueller referred to
[t]he commentary on HRS § 712-1200 ... in pertinent part:
Our study of public attitude in this area revealed the widespread belief among those interviewed that prostitution should be suppressed entirely or that it should be so restricted as not to offend those members of society who do not wish to consort with prostitutes or to be affronted by them. Making prostitution a criminal offense is one method of controlling the scope of prostitution and thereby protecting those segments of society which are offended by its open existence. This "abolitionist” approach is not without its vociferous detractors. There are those that contend that the only honest and workable approach to the problem is to legalize prostitution and confine it to certain localities within a given community. While such a proposal may exhibit foresight and practicality, the fact remains that a large segment of society is not presently willing to accept such a Liberal approach. Recognizing this fact and the need for public order, the Code makes prostitution and its associate enterprises criminal offenses.
66 Haw. at 629 n. 8,
. Relatedly, there is a general consensus in the international community that prostitution has negative consequences. The Convention for the Suppression of the Traffic in Person and the Exploitation of the Prostitution of Others states that “prostitution and the accompanying evil of the traffic in person for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community.” Dec. 2, 1949, 96 U.N.T.S. 271 [hereinafter the Convention]. The parties to the Convention agree to punish any person who ”[e]xploits the prostitution of another person, even with the consent of that person” and “to take or to encourage, through their public and private education, health, social, economic and other related services, measures for the prevention of prostitution and for the rehabilitation and social adjustment of the victims of prostitution and of the offences referred to in the present Convention.” Id.
The United States has agreed to "take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.” Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1979, 1249 U.N.T.S, 13, 19 I.L.M. 33 (1980) [hereinafter the Convention on Discrimination]. The Convention on Discrimination was adopted in 1979 by the UN General Assembly and as of Nov. 2006, 185 countries (over 90% of the members of the UN) are parties to the Convention. Several of the countries that have ratified the treaty are Afghanistan, Australia, Austria, Cuba, China, Germany, Israel, Italy, Mexico, and Netherlands. See United Nations, Division on the Advancement of Women, http:// www.un.org/womenwatch/daw/cedaw/states.htm (last visited Feb. 21, 2007).
This court has cited international authority in resolving appeals. See Almeida v. Correa,
Dissenting Opinion
Dissenting Opinion by
I respectfully disagree with the majority’s treatment of the defendant-appellant Pame Ann Mary Leilani Romano’s argument that Hawaii Revised Statutes (HRS) § 712-1200(1) (Supp.1998),
1. BACKGROUND
Inasmuch as the disposition of the present matter relies significantly on its unique facts, I summarize them here.
The present matter arose out of an undercover operation conducted by the Morals Detail of the Honolulu Police Department (HPD) at the former Aston Waikiki Beach Hotel (the Aston). On August 13 and 26, 2003, the district court conducted a bench
A. The Prosecution’s Case
On January 18, 2003, HPD Officer Jeffrey Tallion checked into a room in the Aston to investigate prostitution activity. His assignment that evening was to “set up appointments” with suspected prostitutes advertising in the telephone book, in the PennySaver, in MidWeek,
Officer Tallion answered “a small little ad in the [PennySaver ] Classified[s] that advertised massage service.” The advertisement to which Officer Tallion responded read:
$30 1/2 HOUR
RELAXING/ACUPRESSURE MASSAGE BY PAM (PAME)
[telephone number]
SAME DAY APPOINTMENT
[two Honolulu addresses]
(Lie: [######])
(Emphases in original.)
Officer Tallion met Romano outside the Aston and confirmed that she was the woman he had spoken to earlier on the telephone. Romano was wearing neither “low-cut” nor “see-through” clothing but, rather, “regular clothes ... nothing revealing.” As Officer Tallion summarized, “[Romano] was not walking up and down the streets in any kind of revealing ... attire.” The two proceeded up to Officer Tallion’s hotel room. The record indicates no discussion concerning massage or any topic of a suggestive nature until Romano and Officer Tallion were in the hotel room. Once inside the hotel room, Officer Tallion testified, he
[confirmed that it was a hundred dollars for the out-call which was related ... when I first made the appointment; and then ... I asked if she did anything else. And she said, “Like what? Dance?” And I said, “No.” And then she goes, “Well, what did you have in mind?”
At that time, I said, “Well, I was referring to a blowjob[.”] And she goes, “No, hands only.” I go, “So no blowjob, so handjob.” She goes, ‘Yeah, I can do that.” So at that time I go, “Well, does that cost extra?” She goes, “Add 20[.”] So I go, “Oh, $20 for a handjob.” And she replied, ‘Yes[.”J
After the aforementioned dialogue, Officer Tallion gave a prearranged signal and other officers entered the room and arrested Romano. Officer Tallion estimated that their conversation inside the hotel room spanned ten minutes.
On cross-examination, Officer Tallion conceded that Romano never physically attempted to touch him sexually, nor did she exhibit a prophylactic, disrobe, or direct him to remove his clothing.
Officer Tallion further testified that, based on his knowledge and training as a police officer, Romano had offered him sexual conduct during their conversation: “ ‘Handjob’ is the street vernacular commonly used in prostitution for assisted masturbation.” He indicated that Romano did not have time to “make any motions towards [him] to suggest that she was going to commit any sexual act” because, after he “obtained the violation,” he signaled the arrest team. In other words, he “didn’t go for an overt act” because he “didn’t have to go that far.”
In her motion to dismiss, Romano argued that Laun-ence v. Texas effectively invalidated HRS § 712-1200(1), see supra note 1, as applied to Romano’s private sexual activity with a putatively consenting adult. In the written motion itself, Romano cited only article I, section 7 of the Hawaii Constitution and the fourth amendment to the United States Constitution (concerning searches and seizures) as authority, but her entire memorandum in support discussed Lawrence, which concerned the due process clause of the fourteenth amendment to the United States Constitution and, by implication, the other privacy-related amendments and their penumbras, see infra part II.B.1. In the August 26, 2003 hearing on the motion, Romano elaborated orally that the interpretation of Hawaii’s constitutional right to privacy in State v. Mueller,
[I]n ... Mueller, the defendant [Mueller] ... entertained individuals at her home. Police officers] under cover approached her ... in the privacy of her home....
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... [I]f for argument’s sake ... the act was committed, ...
... she was not out on the street. There was not commercial activity in front of individuals. This was a private conversation taldng place in a room according to ... [Officer [Tallion],
(Boldface omitted.)
The prosecution asserted that the applicability of Lawrence, by its own language, was limited to “consenting adults where there is no fee included,” not prostitution. Moreover, the prosecution offered up as state interests in criminalizing sexual conduct between consenting adults for a fee the potential for “disruption to the marital contract” and “sexual diseases that might get passed through promiscuous sex.” Romano maintained that, in Laun-ence, “the ... State made the same arguments ... about ... sexually transmitted diseases ...; also, morality issues and the like,” but that the Laun-ence “Court said that doesn’t apply between consensual adults in the privacy of their own home.”
The district court denied Romano’s motion, stating that “the court does not agree with the applicability of Lawrence ... to the instant situation. What [Romano] is asking is for this court to prematurely second-guess the Hawai[‘]i Supreme Court as to how [it] would apply Lawrence to our particular' statute here in ... Hawai[‘]i.” (Boldface omitted.)
II. IN LIGHT OF LAWRENCE AND ARTICLE I, SECTION 6, ROMANO’S CONVICTION WAS UNCONSTITUTIONAL.
A. Lawrence Severely Undermined The Rationale Of State v. Mueller By Announcing A Federal Privacy Interest In Private Consensual Sex.
At first blush, this court’s decision in Mueller would appear to foreclose Romano’s position that HRS § 712-1200(1), see supra note 1, impermissibly abridged her constitutional right to privacy.
The Mueller court surveyed federal precedent construing an individual’s right to privacy as derived from the federal bill of rights in the context of marriage, contraception, abortion, and pornography. Mueller,
Lawrence created just such a precedent, confirming that individual decisions by married and unmarried persons “concerning the intimacies of their physical relationship ... are a form of ‘liberty protected by the Due Process Clause of the Fourteenth Amendment.”
In Lawrence, the charged conduct, denominated in the challenged Texas statute as “ ‘deviate sexual intercourse with another individual of the same sex,’ ” was undertaken “in private and consensual[ly].”
Having overruled Bowers, the majority expressly limited the extent of its holding: “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not be easily refused. It does not involve public conduct or prostitution.” Id. at 578,
The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood ... v. Casey,505 U.S. 833 , 850[,112 S.Ct. 2791 ,120 L.Ed.2d 674 ] (1992).
B. The Jurisprudence Of This Court And The Intent Of The Drafters Of Article I, Section 6, Require That The State’s Criminalization Of A Private Transaction Be Justified By A Compelling Interest In Preventing Harm To Others.
1. The fundamental right “to be left alone”
The Mueller court next turned to the privacy provision adopted in 1978 as article I, section 6 of the state constitution. First, the court acknowledged that the “terse language” of article I, section 6 required it to resort to extrinsic aids to construction. The Mueller court noted that the delegates to the constitutional convention had recorded “the[ir] intent ... to [e]nsure that privacy is treated as a fundamental right,” Comm. Whole Rep. No. 15, in 1 Proceedings of the Constitutional Convention of Hawai'i of 1978 [hereinafter, “Proceedings”] at 1024 (1980), but the court also implied that Hawaii’s newly codified privacy right was circumscribed by federal precedent. See
The Mueller court’s narrow construction of article I, section 6 has since been called into question:
*19 “As the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawaii Constitution, we are free to give broader privacy protection than that given by the federal constitution.” [State v.] Kam, 69 Haw. [483,] 491, 748 P.2d [372,] 377 [(1988)]. Moreover, unlike the federal constitution, our state constitution contains a specific provision expressly establishing the right to privacy as a constitutional right. Thus, ... the text of our constitution appear[s] to invite this court to look beyond the federal standards in interpreting the right to privacy.
State v. Malian,
The roots of article I, section 6 extend deep into this court’s jurisprudence. State v. Lee,
[W]here an individual’s conduct, or a class of individuals’ conduct, does not directly harm others the public interest is not affected and [such conduct] is not properly the subject of the police power of the' legislature. However, where the legislature has determined that the conduct of a particular’ class of people recklessly affects them physical well-being and that the consequent physical injury and death is so widespread as to be of grave concern to the public and where the incidence and severity of the physical harm has been statistically demonstrated to the satisfaction of th[is c]ourt, then the conduct of that class of people affects the public interest and is properly within the scope of the police power. Of course, where the conduct sought to be regulated is in furtherance of a specific constitutional right, a different situation arises.
Justice Abe’s concurring opinion in State v. Kantner,
The Kantner plurality disposed of the appellants’ argument by employing a standard
To the degree that the Kantner plurality did address the appellants’ contention that the personal use of marijuana implicated a fundamental liberty interest leading to a heightened standard of review, it merely stated that “[w]e doubt ... that the use of a mind[-]altering drug, absent an intimate connection with a ‘preferred freedom[,’] requires the standard of review which [the] appellants suggest” (emphasis added), concluding ultimately that “there is no fundamental guarantee protecting the use and possession of euphoric drugs,” basing its conclusion wholly on the definition of a preferred freedom extant at the time under the federal constitution as an activity that is “essential, not merely desirable, for the exercise of the specifically enumerated rights.” Id. (emphasis added) (summarizing Gris-wold ). The plurality, therefore, did not dispute Justice Abe’s assertions that individual liberty foreclosed the intrusion of the state’s police power into wholly private activity that did not harm others and that any infringement of that preferred freedom mandated heightened scrutiny. Rather, the Kantner plurality concluded that, under federal precedent at the time, the possession of marijuana was not a fundamental right and, hence, no “preferred freedom” was infringed.
The Lee tenet of individual liberty was reaffirmed a year later in State v. Cotton,
The Baker majority further concluded that, “[w]hile our State Constitution has a right of privacy provision,
Finally, the Baker majority, while “not unmindful ... ‘... that the concern for public health and safety is relevant only insofar as the actions of one individual may threaten the well-being of others,’ ” first sidestepped Justice Abe’s rationale on the basis that the appellees had conceded that the state’s police power could regulate marijuana possession and then woodenly distinguished Lee and Cotton as “inapplicable” because they dealt with motorcycle helmets and goggles and not marijuana. See
Baker, Renfro and Bachman—and the federal grounds upon which Mueller in part relied—were rooted in the inability of this court, in considering the activity in question, to discern any infringement of a fundamental right similar to those emanating from and incorporated into the states through the first, third, fourth, , fifth, ninth, and fourteenth amendments to the United States Constitution, cf. Griswold,
2. The genesis of article I, section 6
Concomitantly, this court has, in the past, recognized that the drafters of article I, section 6 intended that the right to be left alone be guarded by a compelling interest standard of scrutiny and, hence, a presumption against the constitutionality of criminalizing private behavior.
Kam, which quoted with approval the constitutional convention’s Committee on Bill of Rights, Suffrage and Elections, summarized the “harm to others” concept as the boundary between the state’s police power and the fundamental right to privacy:
Perhaps the most important aspect of privacy is that it confers upon people the most important right of all—the right to be left alone. As Justice Brandéis said in his now celebrated and vindicated dissent in Olmstead v. U[nited ] S[tates]277 U.S. 438 [, 479,48 S.Ct. 564 ,72 L.Ed. 944 ] (1928)[ (Brandeis, J., dissenting) ]:
*22 “The makers of our Constitution ... conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the most valued by civilized [people].”
It gives each and every individual the right to control certain highly personal and intimate affairs of his own life. The right to personal autonomy, to dictate his own lifestyle, to be oneself are included in this concept of privacy. As Justice Abe stated in his concurring opinion in State v. Kantner,53 Haw. 327 , [336,]493 P.2d 306 [, 312] (1972)[ (Abe, J. concurring) ]: each person has the “fundamental right of liberty to make a fool of himself as long as his act does not endanger others, and that the state may regulate the conduct of a person under pain of criminal punishment only when his actions affect the general welfare— that is, where others are harmed or likely to be harmed.”
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It should be emphasized that this right is not an absolute one but, because similar to the right of free speech, it is so important in value to society that it can be infringed upon only by the showing of a compelling state interest. If the State is able to show a compelling state interest, the right of the group will prevail over the privacy rights or the right of the individual. However, in view of the important nature of this right, the State must use the least restrictive means should it desire to interfere with the right.
... 1 Proceedings ... at 674-75 ... (emphases added).
Kam,
In sum, the plain language of article I, section 6 compels the conclusion that the right to privacy, expressly including the right to harm oneself and oneself alone, is a fundamental right, an infringement upon which must manifest more than a mere rational basis. An honest articulation of the privacy interest at stake is a prerequisite, however, to any analysis that would purport to adhere to the intent of the drafters to protect individual liberties.
C. Rejecting The Fallacy Of Trivialization
To frame the question at bar as whether “a decision to engage in sex for hire is a fundamental right in our scheme of ordered liberty,” as did our predecessors in Mueller,
The United States Supreme Court, in Lawrence, recognized the danger of the fallacy of trivialization when it asserted that the Bowers Court had “misapprehended the claim of liberty” at stake by framing the question as “whether there is a fundamental right to engage in consensual sodomy.”
D. The Narrow Import Of My Analysis
The majority asserts that I argue “that a logical extension of Lawrence precludes the states from exercising their police power to curb prostitution.” Majority opinion at 9,
I merely assert that HRS § 712-1200(1), see supra note 1, as applied to Romano in the present matter is unconstitutional. Romano’s prosecution and conviction reflect an extraordinarily cramped application of HRS § 712-1200(1). The uncontroverted evidence in the present matter demonstrates that Romano was held criminally accountable for wholly private, though admittedly sexual, behavior with another consenting adult. As its majority noted, Lawrence presupposed private sexual activity between two adults fully capable of giving valid consent.
With regard to demonstrating the necessary compelling interest, at the hearing on Romano’s motion to dismiss, the prosecution did speak generally to the state’s interest “in making prostitution illegal,” e.g., avoiding the “disruption to the marital contract,” and “any sexual diseases that might get passed through promiscuous sex.” However, such concerns as moral depravity, the salacious reputation of a community, and disease and their attendant impact on productivity, tourism, etc., are commonly trotted out in the name of the “general welfare,” are generally speculative and attenuated, and can be moderated through “less restrictive” time, place, and manner regulations.
In light of the foregoing analysis, I would reverse the district court’s August 26, 2003 judgment.
. HRS § 712-1200, entitled "Prostitution/' provides in relevant part:
(1) A person commits the offense of prostitution if the person engages in, or agrees or offers to engage in, sexual conduct with another person for a fee.
(2) As used in [paragraph] (1), "sexual conduct” means "sexual penetration,” "deviate sexual intercourse," or "sexual contact,” as those terms are defined in [HRS §] 707-700.
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(5) This section shall not apply to any member of a police department, a sheriff, or a law enforcement officer acting in the course and scope of duties.
HRS § 707-700 (Supp.2001) provided in relevant part:
"Married” includes persons legally married, and a male and female living together as husband and wife regardless of their legal status, but does not include spouses living apart.
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"Sexual contact” means any touching of the sexual or other intimate parts of a person not married to the actor, or of the sexual or other intimate parts of the actor by the person, whether directly or through the clothing or other material intended to cover the sexual or other intimate parts.
Effective May 10, 2004, the definition of sexual contact was amended in relevant part to read "... any touching, other than acts of "sexual penetration,” of the sexual or other intimate parts of a person not married to the actor ...” (new language underscored). See 2004 Haw. Sess. L. Act 61, §§ 3 and 8 at 303-04. Effective May 22, 2006, the definition was further amended in respects immaterial to the present matter. See 2006 Haw. Sess. L. Act 116, §§ 4 and 10 at 331-33.
. Article I, section 6 of the Hawaii Constitution provides: "The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.” This provision was drafted by the 1978 constitutional convention and added following voter approval in the general election of November 7, 1978.
. I would take judicial notice that the PennySaver is a free "buy and sell” publication distributed in Hawai'i and that MidWeek is similarly a free or inexpensive newspaper with heavy advertising content and wide distribution throughout O'ahu.
. Testifying in her own defense, Romano confirmed that she was a self-employed massage therapist and had held an active license for nineteen years. She advertised under the “Body, Mind and Spirit,” "Massage” or "Health and Fitness” sections of PennySaver, but never under its "Adult” or “Personal” sections.
. It is unclear whether the defendant in Mueller based her arguments on both the federal and state constitutions, but this court based its decision on an analysis of both.
. See U.S. Const, amend. XIV, § 1 ("No State shall ... deprive any person of life, liberty, or property, without due process of law.... ”).
. Haw. Const, art. I, § 5 (1968) (renumbered as Haw. Const, art. I, § 7 (1978)) provided:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures, and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly de*21 scribing the place to be searched and the persons or things to be seized or the communications sought to be intercepted.
The privacy provision now enshrined in article I, section 6 had not yet been adopted.
. Alaska Const. art. I, § 22, effective October 14, 1972, provides: "The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section.”
. See, e.g., Brothel Licence Conditions 1-5 (Prostitution Licensing Auth. (Queensl., Austl.) Sept. 12, 2003), available at http://www.pla.fqld.gov.au /pdfs/brothels/brothel—license—condtions.pdf [sic] ("The licensee must ...: 23.... Provide written information about sexually transmitted infections (STIs) in the client waiting area and ensure written information about STIs is available to all staff and sex workers. 24. Ensure sex workers hold a current sexual health certificate.”).