Porn law’s loophole helped Oahu man avoid charges, critics say

She told the story three times in three different settings, and each time the authorities believed the girl – and what she described was revolting.

The victim advocates, police and prosecutors found the 5-year-old girl’s recollections to be credible and consistent.

The child told them she was at a friend’s Oahu home for a sleepover, and while everyone else was asleep, the friend’s father showed her a computer video of naked women dancing. One was performing oral sex, according to a police report.

The girl said the father asked her if she wanted to do what the women were doing. Disgusted, she told him no, according to the report.

The alleged incident happened just a few weeks shy of the girl’s fifth birthday in 2016. But the youngster, not wanting to be prevented from sleeping at her friend’s home again, didn’t tell her parents until a year later. Police were summoned.

The girl’s account, which included drawings of what she saw on the video, was credible enough that police arrested the man, a high-tech entrepreneur, on suspicion of promoting pornography to a minor. He was never charged.

Two of the reasons prosecutors cited in not charging the suspect centered on how Hawaii’s law is written regarding promoting pornography to a minor. A third reason, prosecutors told the Honolulu Star-Advertiser, was that the video allegedly shown to the girl never was recovered.

Her mother largely blames flaws in the law – and prosecutors unwillingness to aggressively enforce it – for the suspect escaping any accountability for his alleged behavior.

“I was frustrated and sad and angry,” the mother told the Star-Advertiser. “The system failed my daughter.”

The newspaper is not naming the mother because doing so would indirectly identify the girl. The Star-Advertiser has a general policy of not naming alleged victims of sex-related crimes. The newspaper also is not identifying the suspect because he never was charged.

Driven by the lack of a prosecution, the mother has started contacting legislators in hopes of getting the law changed.

One of them, Rep. Scott Nishimoto, chairman of the House Judiciary Committee, said the girl’s case underscores the need to amend the law. He has introduced three measures, House bills 1850, 1851 and 1852, to revise the law.

“I find it offensive, unacceptable and a little creepy” that the suspect wasn’t prosecuted, Nishimoto told the Star-Advertiser. “We’re going to do everything we can to try to fix the law right away. I don’t want to see this happen to anyone else.”

The existing law, Hawaii Revised Statutes Section 712-1215, carves out an exception for parents, guardians or those acting “in loco parentis,” or in place of a parent. The idea behind the exception, prosecutors say, is a reluctance to infringe on parental rights of child rearing, including in the area of sex education.

“We get why there is this exception,” said Lynn Costales, head of the prosecutor’s sex assault and trafficking unit.

In the sleepover case, the friend’s father could make the argument that he was acting as the girl’s guardian or in place of the parents while she was at his home, according to prosecutors.

Another part of the statute, HRS 712-1210, requires that an average person applying contemporary community standards would conclude that the pornographic material appeals to a minor’s “prurient interest.”

Proving beyond a reasonable doubt that the video, which prosecutors didn’t have, appealed to the prurient interests of a 4-year-old would have been difficult, according to Costales and Chasid Sapolu, first deputy prosecutor.

Sapolu said having the video is “important in porn cases.”

But having the video was not essential to prosecuting the sleepover case, according to Costales and Sapolu. They also said the girl’s statements about what happened were deemed to be very credible.

This wasn’t the first time the suspect, who is married and has young children, had been accused of sexually inappropriate behavior involving a minor.

Roughly three months before the girl’s parents reported him to police in June, another couple living in Nevada told authorities there that their daughter had been sexually molested on multiple occasions by the same man in Hawaii, also during sleepovers at the man’s home, according to a Henderson, Nev., police report obtained by the Star-Advertiser.

The family used to live in Hawaii.

The girl, then 6, told Henderson police in February that the suspect would take her into a bathroom while the rest of the family slept and lick her “omata,” a Japanese word for crotch or vagina, the report said.

Although the alleged assaults happened two years earlier, when she was 3 or 4, the girl didn’t tell her parents until after they moved to Nevada, according to the report.

In March a Honolulu detective went to Nevada to observe a forensics interview of the girl, but at that session she did not disclose the alleged abuse, the Henderson report said.

The suspect was not arrested or charged in that case.

The mother of the Nevada girl declined comment.

The two families did not know each other in Hawaii. But the mother of the Oahu girl tracked down the Nevada couple after learning that their daughter had been to sleepovers at the suspect’s home. The mother contacted the mainland couple on the off chance their child had had a similar experience.

That’s when each family learned of the other’s police case.

This isn’t the first time that Honolulu prosecutors have cited the guardianship or loco parentis exception as a factor in deciding not to pursue charges against someone suspected of promoting pornography to a minor.

Prosecutors have made that call probably two or three other times within the past four years, according to Costales and Sapolu, and in those cases their office also did not recover the pornographic material.

“It’s not as strong a case as we would like,” Sapolu said.

The mother in the recent case said the friend’s father obviously was not her daughter’s guardian. She agreed that most people would be puzzled as to why he wasn’t prosecuted. “There’s clearly a flaw in the law,” she said.

Prosecutors did not know how Hawaii’s law compares with other jurisdictions.

A spot check of state statutes by the Star-Advertiser, however, found some differences.

Florida, for instance, prohibits the showing of any obscene material to a minor, using contemporary community standards and prurient interests in determining what is obscene – similar to the thresholds in Hawaii’s law. But Florida’s protection-of-minors statute does not have a guardian or loco parentis exception.

The way Hawaii’s existing law is applied seems to give too much leeway under that exception, according to those advocating changes.

Nishimoto, the House Judiciary chair, said he plans to introduce legislation in the upcoming session to address ambiguities in the law so prosecutors can more readily prosecute a case like the sleepover one.

He said the existing one is outdated and doesn’t take into account some of the problems created with new technology in promoting pornography. “In a lot of ways, we’re playing catch-up with this kind of stuff,” he said.

Sen. Brian Taniguchi, the Senate Judiciary chairman, said he was open to considering a legislative fix but needed to hear from prosecutors and learn more about what changes may be needed.

Prosecutors likewise said they were open to a possible legislative fix but needed to do more research.

The mother of the girl said her daughter did everything that was asked of her in cooperating with authorities, including going through three different interviews with investigators.

“It’s not anything that is fun for a child to do,” she said. “But she was strong, brave and just awesome throughout the process.”

In the end, though, prosecutors determined they didn’t have enough to take the suspect to court.

The decision stunned the mother.

“It was very mind-boggling and sickening,” she said.