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Wisconsin justices OK immunity defense for trafficking victim in murder case

If she can prove her actions were significantly related to her abuse, a 22-year-old can now try using a Wisconsin sex trafficking law as a complete defense for first-degree murder at her trial.

MADISON, Wis. (CN) — A Wisconsin woman accused of murdering her alleged human trafficker, stealing his car and burning down his house may attempt at trial to use provisions of state trafficking law as immunity against her murder charge, the Wisconsin Supreme Court said Wednesday.

While binding only in the Badger State, the court’s decision could expand the immunity defense options available to trafficking victims everywhere, something anti-sexual violence and gender justice groups that filed a brief in the case of Chrystul Kizer advocated for to truly account for the impact of human trafficking when victims are charged with criminal offenses.

The underlying case involves the alleged murder of Randall Volar, 34, by Kizer, 22, who claims Volar had previously sexually assaulted and trafficked her for years after they met on a sex trafficking website. The case has generated nationwide attention and sparked conversation among legal experts about the boundaries of criminal immunity, especially for victims of trafficking.

According to court records, on June 4, 2018, Kizer, then 17, took an Uber paid for by Volar from Milwaukee to Volar’s home in Kenosha. Police and prosecutors say that when she arrived, Kizer sat Volar in a chair and shot him in the head, then used liquor and paper towels to set his house on fire before driving back north to Milwaukee in Volar’s BMW.

Kizer was subsequently arrested and, on June 13, 2018, was charged in Kenosha County Circuit Court with felonies including first-degree intentional homicide and arson. Kizer allegedly told police she and Volar had been in a sexual relationship and that she intended to kill him so he would “stop touching on her.” Volar was under investigation at the time for multiple crimes against children, including Kizer, but had not yet been charged when he was killed, according to court documents.

At a pretrial conference, Kizer and her attorneys asked to invoke an affirmative defense for victims of human trafficking and child sex trafficking, arguing a 2008 Wisconsin law gives her immunity from any offenses committed as a direct result of being trafficked.

A Wisconsin Court of Appeals panel reversed the circuit court and ruled in June 2021 that Kizer should at least be able to make that argument to the jury.

Claiming such immunity cannot extend as far as homicide, prosecutors appealed to the Wisconsin Supreme Court, where arguments took place in March. Whether Kizer should be able to get off a murder charge using the affirmative defense for trafficking victims elicited both disquiet and support from the justices.

Legal Action of Wisconsin, a firm that provides free legal services to low-income people, said in a brief filed with the high court that at least 31 states, including Wisconsin, have similar criminal immunity laws for trafficking victims, and they encouraged the court to seize the opportunity to confirm when such a defense can be employed.

“[Kizer’s] case illustrates the complexity of human trafficking, how the criminal justice system can fail trafficking victims, and why the Wisconsin Legislature therefore provided an affirmative defense under [the relevant statute] for trafficking victims charged with ‘any offense’ as a direct result of their being trafficked,” the brief said.

In a 4-3 bipartisan majority opinion written by liberal Justice Rebecca Dallet, the court opined on what it means for a crime to be committed as a direct result of trafficking under Wisconsin law and ultimately held the law offered a complete defense for first-degree intentional homicide, though the majority stopped short of deciding whether Kizer is entitled to a jury instruction on such a defense at trial.

Dallet wrote that “an offense is ‘committed as a direct result’ of a violation of the human-trafficking statutes if there is a logical, causal connection between the offense and the trafficking such that the offense is not the result, in significant part, of other events, circumstances, or considerations apart from the trafficking violation.”

“Additionally, we emphasize that the offense need not be a foreseeable result of the trafficking violation and need not proceed ‘relatively immediately’ from the trafficking violation,” the justice said.

Dallet—joined in the majority by conservative Justice Rebecca Grassl Bradley and fellow liberal justices Jill Karofsky and Ann Walsh Bradley—also said since the relevant statute section is ambiguous as to whether it offers a complete or mitigating defense for first-degree intentional homicide, the court needed to apply what is called the rule of lenity. The doctrine resolves ambiguity in a criminal statute in favor of the defendant unless the legislative history of the statute more clearly illuminates its meaning, which it does not in this case.

Three of the court's conservatives, led by Justice Patience Roggensack, said in a dissenting opinion that, given common law and the context of the larger Wisconsin law regarding coercion in which the relevant statute section exists, the statute should only be able to mitigate a first-degree intentional homicide charge to the lesser charge of second-degree intentional homicide, not provide a complete defense. Justice Brian Hagedorn and Chief Justice Annette Ziegler joined Roggensack in her dissent.

A status conference is scheduled for Sept. 9 in Kizer's Kenosha County Circuit Court case.

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