## Facts

- Honolulu police conducted an undercover prostitution operation in Waikīkī.
- An undercover officer rented a hotel room and called a phone number listed in a “massage” advertisement; Pame Ann Mary Leilani Romano answered.
- Romano agreed to an “out call” and met the officer outside the hotel, then went with him to his room.
- The officer confirmed the “out call” price was $100 and asked if Romano “did anything else.”
- During negotiations, the officer proposed oral sex; Romano refused but agreed to perform “hands only” assisted masturbation.
- Romano agreed to perform the sexual act for an additional $20 beyond the $100 fee.
- Romano was arrested and charged with prostitution under Haw. Rev. Stat. § 712-1200(1).

## Issues

1. Whether the evidence was sufficient to prove prostitution under Haw. Rev. Stat. § 712-1200(1), including an agreement to engage in sexual conduct for a fee.
2. Whether the prosecution was required to prove Romano was not a law enforcement officer as part of its prima facie case.
3. Whether, under the Fourteenth Amendment Due Process Clause, Lawrence v. Texas protects consensual adult sexual activity for money such that the prostitution statute is unconstitutional as applied.

## Decision

- The Supreme Court of Hawaiʻi affirmed the conviction and sentence.
- The court held the evidence was sufficient to prove Romano agreed to engage in sexual conduct in return for a fee.
- The court rejected the claim that the State had to prove Romano was not a law enforcement officer.
- The court held Lawrence v. Texas did not invalidate the prostitution statute as applied because prostitution is not “private sexual activity” protected as a liberty interest under substantive due process.

## Legal Principles

- A person commits prostitution under Haw. Rev. Stat. § 712-1200(1) by engaging in, agreeing to engage in, or offering to engage in sexual conduct in return for a fee.
- An agreement formed through negotiation and assent to perform a specified sexual act for payment can satisfy the statute, even if the act is not completed.
- Lawrence v. Texas protects certain noncommercial consensual adult sexual conduct from criminalization, but it does not create a constitutional right to engage in prostitution.
- Commercial sexual conduct may be criminalized without recognizing it as a fundamental liberty interest under the Fourteenth Amendment.

## Conclusion

The court upheld Romano’s prostitution conviction because the evidence showed she agreed to perform sexual conduct for money, and it concluded that substantive due process does not treat prostitution as protected private sexual activity under Lawrence.


State v. Romano, 155 P.3d 1102 (Haw. 2007)