Wisconsin's Supreme Court says woman accused of homicide can pursue sex trafficking defense
A Wisconsin law meant to protect sex trafficking victims from being prosecuted for “any offense committed as a direct result" of being trafficked could become a defense to homicide, the state Supreme Court ruled Wednesday.
In a case closely watched by victims' rights advocates, lawyers sought to raise the affirmative defense for Chrystul Kizer. She was 17 in 2018 when she was charged with first-degree intentional homicide of Nelson Volar III, 34, of Kenosha.
Prosecutors say she went to Volar's home on June 5, 2018, shot him in the head, set a fire in his home and stole his BMW, computer and cash. They say it was a premeditated crime to steal the car.
Kizer's lawyers argued she had snapped after years of abuse by Volar.
In Wednesday's 4-3 decision, the court upheld a Court of Appeals decision that said Kizer should be allowed to at least make an argument that her actions resulted from being trafficked by Volar. A trial judge had foreclosed even the possibility.
If Kizer's lawyers make the initial showing and a jury finds prosecutors did not rebut the defense, it would mean full acquittal of the charges. Prosecutors argued if the defense were allowed, it should only serve to mitigate the charges from first- to second-degree intentional homicide.
Even the dissent believes the sex trafficking victim law could apply but thinks it at best would protect the victim from the more serious charge. Justice Rebecca Dallet wrote the majority opinion, joined by justices Ann Walsh Bradley, Jill Karofsky and Rebecca Bradley. The Bradleys are not related.
Justice Patience Roggensack wrote the dissent, joined by Justice Brian Hagedorn and Chief Justice Annette Ziegler.
BACKGROUND: Wisconsin Supreme Court to weigh in on sex trafficking victim defense in Kenosha homicide
RELATED: Court of Appeals rules for sex-trafficking victim charged with killing her abuser
What happened in Kizer's case?
Volar had been arrested in February 2018 on child sexual assault charges but was later released. Later police learned he had filmed himself sexually assaulting Kizer and that he'd been abusing a dozen other Black girls under 18.
He had not been rearrested or charged by the night Kizer came to his house.
The 2008 law provides an affirmative defense for victims of human and child sex trafficking to “any offense committed as a direct result" of those crimes. It applies even if no one was ever prosecuted for the trafficking.
A Kenosha judge decided Kizer's acts were not a direct result of being trafficked. The Court of Appeals reversed the decision, saying Kizer was entitled to at least develop the record further to try to prove that in her situation, killing Volar was a direct result of him trafficking her. The state appealed to the Supreme Court.
Trauma and human trafficking
Thirteen organizations, including the Wisconsin Coalition Against Sexual Assault, the Harvard Law School Gender Violence Program, Rights4Girls, the Institute to Address Commercial Sexual Exploitation, Legal Momentum and others, filed a friend of the court brief.
The brief explains, "The trauma associated with human trafficking profoundly alters victims’ cognitive functioning and ability to make autonomous decisions.
"The causal link between victimization and criminality creates a cycle of abuse whereby victims are penalized for their reactions to their own trauma."
The brief notes some states' trafficking victim laws specify the defense applies to only prostitution, while others are open ended. Wisconsin and four other states tread a middle ground, applying to "any offense," if it's a direct result of the crime of trafficking.
Both Dallet and, in a concurring opinion, Rebecca Bradley, cited the "rule of lenity" as the reason for supporting the trafficking victim law as a full defense, not just a mitigating defense.
That rule says that when criminal laws are ambiguous, and both the prosecution and defense can offer reasonable interpretations, courts must resolve the issue in the defendant's favor.
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Contact Bruce Vielmetti on Twitter at @ProofHearsay.
This article originally appeared on Milwaukee Journal Sentinel: Wisconsin Supreme Court says Kizer can use trafficking victim defense
