Force chiefs will not say how often – or even if – they use the provision, but said it necessary to maintain it.
The provision has shocked advocates and law enforcement experts on the sex trade.
Roger Young, a retired FBI agent who worked sex crimes in Las Vegas for more than 20 years and has trained vice squads around the country, said the provision was entirely unique in the US.
“I don’t know of any state or federal law that allows any law enforcement officer undercover to … do what this law is allowing,” he said. “Once we agree on the price and the sex act, that’s all that you need. That breaks the law.”
This year, state politicians moved to revamp Hawaii’s decades-old law against prostitution. They toughened penalties against pimps and those who use prostitutes. They also proposed scrapping the sex exemption for officers on duty.
But Honolulu police said they need the legal protection to catch lawbreakers in the act.
Otherwise, they argued, prostitutes would insist on sex to identify undercover officers.
Laws were amended to restore the protection and the revised proposal is now before the Hawaii state senate.
But on Friday, legislators said they again planned to change the bill – but this time to end the police exemption.
Senate judiciary committee chairman Clayton Hee called the exemption nonsensical and said he would amend the bill to end it.
Honolulu police spokeswoman Michelle Yu said that vice officers on the force investigate prostitution have not been accused of sexual wrongdoing in recent memory.
In recent testimony, Honolulu police assured lawmakers that departmental policies are in place to prevent officers from taking advantage of the sex exemption. But they would not detail those policies.
Major Jerry Inouye said that if pimps and prostitutes knew that vice squad officers were not permitted to have sex, they could weed out potential clients they suspected of being police, putting them in a dangerous situation if their cover was blown. He said: “If prostitution suspects, pimps and other people are privy to that information, they’re going to know exactly how far the undercover officer can and cannot go,” .
But advocates warn that the provision is an invitation for misconduct.
Melissa Farley, executive director of the San Francisco-based group Prostitution Research and Education, said sex workers commonly complain of being coerced into giving sexual favours to police to keep from getting arrested.
Derek Marsh, who trains California police in best practices on human trafficking cases and twice has testified to Congress about the issue, said the exemption was “antiquated at best” and that police can easily do without it.
“It doesn’t help your case, and at worst you further traumatise someone. And do you think he or she is going to trust a cop again?” asked Marsh,
Charlie Fuller, executive director of the International Association of Undercover Officers, laughed when he heard about the Hawaii law.
“A good undercover is going to get probable cause before they have to cross that line,” he said.