Legal loophole complicates child porn case in Hawaii

January 22, 2018

HONOLULU (AP) — A man suspected of showing pornography to a 4-year-old has avoided charges partly because of a loophole in Hawaii state law.

The girl told her parents that a friend’s father showed her a video with a sex act in it and asked her if she wanted to try it at a sleepover, authorities said, adding that the girl refused.

The suspect has not been charged because the alleged video couldn’t be found, but also because the suspect might have been considered the girl’s guardian while she was at his home, the Honolulu Star-Advertiser reported Sunday.

Hawaii’s law against promoting pornography to a minor has an exception for parents, guardians or those acting in place of a parent. The reasoning behind the exception is to avoid infringing on parental rights in the area of sex education, prosecutors said.

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

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

Costales said that if authorities had a video, it probably would have been difficult to prove watching it was in the girl’s interest. But Chasid Sapolu, first deputy prosecutor, said having the video itself is the important piece of a porn case.

Even so, the girl’s mother contacted legislators in hopes of getting the law changed. The decision to not charge the suspect did not sit well with her.

“It was very mind-boggling and sickening,” she told the Honolulu Star-Advertiser.

At least one legislator, Democrat Rep. Scott Nishimoto, has tried to help the girl. Nishimoto introduced three bills in an attempt to revise the law.

“I find it offensive, unacceptable and a little creepy,” Nishimoto said. “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 Associated Press does not identify alleged sexual assault victims. The girl’s mother is not being identified because doing so would identify the girl.


Information from: Honolulu Star-Advertiser, http://www.staradvertiser.com

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