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Police end fight over sex with prostitutes

HPD no longer opposes removing its exemption from a state law

By Allison Schaefers

LAST UPDATED: 4:58 p.m. HST, Mar 26, 2014

Following a closed-door meeting Tuesday with a key Hawaii lawmaker, Hono­lulu police reversed their objection to a potential change in state law that would make it illegal for officers to have sex with prostitutes.

Honolulu Police Department Capt. Jason Kawa­bata and Maj. Jerry Ino­uye told state Sen. Clayton Hee that they wouldn't oppose the removal of language exempting officers from being prosecuted for having sex with a prostitute as long as protections were in place for undercover officers to verbally agree to have sex, said Hono­lulu police spokes­woman Teresa Bell.

"We never urged lawmakers to allow police to have sex with prostitutes. We only asked for language to be written to allow for the verbal agreement," said Bell. She said police had objected to the proposed change in the law that would have removed an exemption for police to the state's prostitution laws. The proposed change "as written was worded poorly and could be misinterpreted."

While Hee did not return a call to the Hono­lulu Star-Advertiser following his meeting with HPD, he told the Associated Press that the meeting ended with a mutual understanding that the exemption ran contrary to popular opinion. Indeed, HPD's opposition to ending the exemption ignited a firestorm of controversy around the globe.

"I suppose that in retrospect the police probably feel somewhat embarrassed about this whole situation," Hee (D, Heeia-Laie-Waia­lua) told the AP. "But, thankfully, the issue has been brought to light, and the behavior has been addressed.

"The police support the idea that sexual penetration shall not be an exempt permitted behavior by the police in making arrests on prostitutes," Hee added. "They agree this tool is not an appropriate tool for their toolbox."

Hee's committee is expected to complete decision-making on House Bill 1926 during a hearing at 10 a.m. Friday in Room 16 of the state Capitol. The hearing, which Bell said HPD is expected to attend, will not be open for public comments. Hee expressed frustration that the department was absent from his committee's last hearing on the bill.

"Their absence was deafening. Why HPD would not show up is a mystery to me and frankly a source of irritation," Hee told the Star-Advertiser prior to attending the private meeting HPD had requested.

Bell said police didn't testify publicly because they were still monitoring the bill. She said HPD's earlier stance on the bill had been misconstrued and that having sex with prostitutes has always been outlawed by internal standards. Still, HPD and city Prosecutor Keith Kane­shiro lobbied to keep an exemption in an earlier version of the bill, which passed the House.

"The procedures and conduct of the undercover officers are regulated by department rules, which by nature have to be confidential," Ino­uye said at a Feb. 13 hearing. "Because if prostitution suspects, pimps and other people are privy to that information, they are going to know exactly how far that undercover officer can and cannot go. … As it is, we are already subject to cop checking where prostitution suspects do certain acts to determine whether the person is an undercover officer."

Bell said Inouye's comments were meant only to protect undercover officers who made verbal agreements to have sex with a prostitute.

However, Deputy Prosecutor Jon Riki Kara­ma­tsu's testimony in favor of the exemption referenced the department's support of protections for undercover officers who are engaging in sexual conduct during an investigation. "Our concern is the same as HPD. Undercovers, they go in, and there are these girls who will go in like the major mentioned earlier. (During) those cop checks what they do is they try to initiate physical contact or penetration … it places the officers at criminal liability — not civil, but criminal. … Otherwise me might say they shouldn't do undercover because of the risk of criminal liability."

Kathryn Xian, executive director of the Pacific Alliance to Stop Slavery, said HPD and the prosecutor's office were unmistakable in their testimony about the use of sexual penetration and that the bill never prevented HPD's undercover officers from verbally soliciting prostitutes to make an arrest.

"They said it clearly in testimony that this phenomena called cop checking was why they needed sexual penetration," Xian said. "We're glad that after all the negative publicity they have finally come to their senses."

Xian, who is a candidate for Congress, said her group and other activists worked with state lawmakers for more than three years to ban police from having sex with prostitutes.

"It's necessary because the act of police sexually victimizing prostituted persons goes on a lot," she said.  

Xian said PASS has informed HPD and the city prosecutor's office of instances in which police had engaged in sexual activity with clients.

HPD policies of secrecy in regard to internal affairs and disciplinary measures prevent the public from knowing how often officers cross sexual boundaries, defense attorneys and former prosecutors say, and they suspect it happens routinely.

"I think the public has the impression that police sleeping with prostitutes is a rare occurrence. If it were rare, why would they try to get an exemption? It's rampant, out of control," said Myles Brei­ner, a former Hono­lulu prosecutor who now works as a defense attorney. He estimates that almost all of the up to two dozen prostitutes that he defends annually have had sexual encounters with police.

Tim McGivern, who was a city prosecutor in the mid-1990s, said a couple of HPD officers were notorious.

"They would always get completely naked, and their reports would read something like, "‘The defendant then put the condom on my erect penis at which point I notified her I was a police officer and she was under an arrest,'" he said.

While McGivern said there was never any documentation that such encounters led to actual sex, some defense attorneys asserted that their clients told them that was the case. "The argument on the police side was that in order to maintain their cover, they had to take it to that extent. Legally speaking all you need is an agreement. If I say I will perform sex acts for you if you pay me, that's enough. So technically speaking they didn't have to take it that far," he said. "The creepy factor to me was significant. All of my colleagues at the time felt the same way. We talked about it and felt it was gross and unnecessary." 

Jeff Hawk, a criminal defense attorney in Hono­lulu, said the alleged prostitutes whom he represents never have told him that male officers had sex with them, but they have said that some of them have disrobed.

"You never hear complaints about female officers using these techniques to go after johns. This is strictly limited to male officers," Hawk said. "In the past, some male officers have treated it as a perk of the job. How often does it happen? That depends on how hot the prostitute is. They aren't going to have sex with a toothless, homeless one."

Defense attorney William Harrison said state law has allowed police to have sex with prostitutes for many years, and as a result he's heard similar complaints from about a third of his clients.

"The Hawaii Supreme Court Case the state v. Tookes validated this procedure back in 1985," Harrison said. "The case held that police were having a civilian agent engage in sexual activity with the defendant, and the court said it did not violate due process or violate equal protection or shock the conscience."

Defense attorneys said they favor reforms.

"By and large, the police are doing a great job and should be credited for all of the hard work that they do. But human nature being what it is, sometimes people in powerful positions take advantage of that and do things they wouldn't otherwise do. There should be checks and balances," Hawk said.

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