State v. Romano
114 Haw. 1, 155 P.3d 1102 (2007)
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Rule of Law:
A state's prostitution statute is not unconstitutional as applied to private, consensual sexual activity for a fee because the U.S. Supreme Court has explicitly excluded prostitution from protected liberty interests, and the state's constitution does not recognize a decision to engage in sex for hire as a fundamental right.
Facts:
- Pame Ann Mary Leilani Romano, a licensed massage therapist, placed an advertisement for her massage services in a 'Pennysaver' newspaper.
- Undercover officer Jeffrey Tallion responded to the advertisement and arranged for Romano to provide an 'out-call' service at his hotel room for a fee of $100.
- Once inside the hotel room, Tallion asked Romano if she performed any services other than massage, specifically asking about a 'blowjob'.
- Romano declined to perform a 'blowjob' but stated, 'hands only'.
- When Tallion clarified by asking, 'so handjob,' Romano agreed by saying, 'Yeah, I can do that,' for an additional fee of $20.
- After Romano agreed to perform the 'handjob' for $20, but before any physical contact occurred, Tallion gave a pre-arranged signal to an arrest team.
Procedural Posture:
- The State of Hawai'i charged Pame Romano with the offense of prostitution in the district court of the first circuit.
- Romano filed a motion to dismiss, arguing that Lawrence v. Texas rendered Hawaii’s prostitution statute unconstitutional as applied to her conduct, which the court denied.
- At trial, Romano moved for a judgment of acquittal, which the court also denied.
- Following a jury-waived trial, the court found Romano guilty of prostitution.
- The court sentenced Romano to six months' probation and a $500 fine, and entered a judgment of conviction.
- Romano, as the Defendant-Appellant, appealed the judgment to the Supreme Court of Hawai'i.
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Issue:
Does Hawaii's prostitution statute, HRS § 712-1200, violate the state and federal constitutional rights to privacy when applied to an agreement for private, consensual sexual conduct between two adults for a fee?
Opinions:
Majority - Acoba, J.
No. Hawaii's prostitution statute does not violate state or federal constitutional rights to privacy when applied to an agreement for private, consensual sexual conduct for a fee. The court's reasoning is twofold. First, the U.S. Supreme Court in Lawrence v. Texas explicitly stated that its holding protecting private, consensual sexual conduct did not involve or apply to prostitution, thereby distinguishing it from the present case. Second, under the Hawaii Constitution, the court reaffirmed its precedent from State v. Mueller, which held that a decision to engage in sex for hire is not a fundamental right implicit in the concept of ordered liberty. Therefore, the state's statute only needed to have a rational basis, which the court found in the legislature's goal of maintaining public order and addressing societal views of prostitution as immoral and degrading.
Dissenting - Levinson, J.
Yes. Hawaii's prostitution statute, as applied in this case, unconstitutionally infringes upon the defendant's right to privacy. The dissent argued that the majority mischaracterizes the issue as a 'right to engage in sex for hire,' which is a 'fallacy of trivialization.' The proper question is whether the state can interfere with the fundamental 'right to be left alone' regarding private conduct between consenting adults without a compelling interest. Although Lawrence v. Texas excluded prostitution, its underlying logic—that the state cannot enforce its moral code on private, consensual adult sexual activity—undermines the rationale of State v. Mueller. Under Hawaii's explicit constitutional right to privacy, the state must demonstrate a compelling interest to criminalize such private behavior, which it failed to do, especially given the absence of public solicitation or harm to others.
Analysis:
This decision solidifies the legal boundary between protected private, non-commercial sexual intimacy as established in Lawrence v. Texas, and unprotected commercial sexual activity. It affirms the state's broad police power to regulate and criminalize prostitution, even when it occurs in a private setting between consenting adults. The ruling indicates that courts will narrowly interpret Lawrence, adhering to its explicit limitations rather than extending its logical reasoning to related areas. Consequently, future constitutional challenges to prostitution statutes based on a right to privacy are unlikely to succeed in this jurisdiction without a change in legislative policy or a superseding court decision.
