hands tied

July 8, 2022 – The affirmative defense available to victims of sex trafficking for crimes committed as a direct result of the trafficking is a complete defense to first-degree intentional homicide, the Wisconsin Supreme Court has ruled.

In State v. Kizer, 2022 WI 58 (July 6, 2022), the supreme court also held (4-3) that an offense is committed “as a direct result” of human trafficking if the offense and the trafficking are logically and causally connected so that the offense is not the result, in any significant way, of events or circumstances that exist apart from the trafficking.

Justice Rebecca Dallet wrote the majority opinion. Joining her on the opinion were Justice Ann Walsh Bradley, Justice Rebecca Grassl Bradley, and Justice Jill Karofsky; Justice R.G. Bradley wrote a concurring opinion.

Justice Patience Roggensack dissented; she was joined by Chief Justice Annette Ziegler and Justice Brian Hagedorn.

Shoots Alleged Trafficker

In June 2018, Chrystul Kizer traveled from Milwaukee to Kenosha, to the home of a man she claims trafficked her.

Jeff M. BrownJeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

Kizer later told a detective that after she arrived at the man’s home, she became upset and was tired of the man touching her so she shot him. Kizer then lit a fire at the house and fled, driving the man’s car. The man died.

After Kizer was arrested, the Kenosha County District Attorney charged her with first-degree intentional homicide, operating a motor vehicle without the owner’s consent, arson, possession of a firearm by a felon, and bail jumping.

Dispute over Affirmative Defense

During a pre-trial conference, Kizer’s lawyer suggested she would base her defense in part onWis. Stat. section 939.46(1m), which provides:

“A victim of a violation of s. 940.302(2) or 948.051 has an affirmative defense for any offense committed as a direct result of the violation of s. 940.302(2) or 948.051 without regard to whether anyone was prosecuted or convicted for the violation of s. 940.302(2) or 948.051.”

Sections 940.302(2) and 948.051 prohibit human trafficking.

The state argued that the defense wasn’t available to Kizer; the circuit court agreed. After allowing Kizer to file an interlocutory appeal, the Wisconsin Court of Appeals reversed the circuit court. The state appealed to the supreme court.

Meaning of ‘Direct Result’

Justice Dallet began her opinion for the majority by analyzing the meaning of the phrase “committed as a direct result of the violation” in section 939.46(1m).

Dallet pointed out that the statute provides no definition for either “direct result” or “committed as a direct result of the violation.” She looked to the dictionary definition of “direct” and “result,” as well as the ordinary usage of the phrase “direct result” and the wording of section 939.46(1m).

Justice Dallet wrote that “an offense is ‘committed as a direct result of the 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.”

Justice Dallet pointed out that in order for the defense to apply, offenses “need not be a foreseeable result of the trafficking violation and need not proceed ‘relatively immediately’ from the trafficking violation.”

“Even an offense that is unforeseeable or that does not occur immediately after a trafficking offense is committed can be a direct result of the trafficking offense, so long as there is still the necessary logical connection between the offense and the trafficking,” Dallet wrote.

Defense is Complete, Not Partial

The state argued that the defense provided for by section 939.46(1m) was not a complete defense to first-degree intentional homicide but rather mitigated a conviction on that charge to one for second-degree homicide. The state based it’s argument on a series of linkages between sections 939.45(1), 940.01(2)(d), and 939.46.

But Justice Dallet explained that section 939.46(1m) was ambiguous, and that the common law rule of lenity requires courts to construe an ambiguous criminal statute in a defendant’s favor unless legislative history exists to help clarify the statute’s meaning.

Because there was nothing in the legislative history on the mitigation issue, Dallet explained that the rule of lentiy applied and required a conclusion that the defense provided by section 939.46(1m) is a complete defense to first-degree intentional homicide.

Lead Opinion Errs on Legislative History

In her concurrence, Justice R.G. Bradley explained that she departed from the majority’s lead opinion because it was error to consult the legislative history of section 939.46(1m) before applying the rule of lenity.

The cases cited by Justice Dallet in support of consulting legislative history before applying the rule of lenity were outdated, R.G. Bradley argued.

“Examining legislative history to resolve an ambiguity in a criminal statute is compatible with Kalal and the purpose of the rule of lenity,” Justice R.G Bradley wrote, citing the seminal 2004 supreme court opinion that established a new rubric for statutory interpretation.

Majority Departed From Common Law in Error

In her dissent, Justice Roggensack argued that the defense provided by section 939.46(1m) was subject to section 939.46(1), which defines the defense of coercion.

Roggensack argued that Justice Dallet erred by concluding that the defense provided by section 939.46(1m) was a complete one because the statute contained no express wording that limited the defense.

Such a conclusion, Justice Roggensack explained, departed from the common law rule. Without finding an “unambiguous and clearly expressed legislative purpose to do so,” that departure was erroneous, Justice Roggensack wrote.

At common law, Roggensack explained, the defense of coercion was a complete defense to all offenses except first-degree intentional homicide.

The legislature codified that rule by enacting section 939.46(1), Justice Roggensack argued. Furthermore, she pointed out, section 940.01(2)(d) specifies that the defense of coercion may mitigate a first-degree intentional homicide charge to second-degree intentional homicide.

Justice Roggensack argued that it was clear that the defense provided by section 939.46(1m) was a coercion defense – the subsection was listed under the section title “Coercion,” and the legislative history of the subsection indicates that it was based on model legislation that contained the terms “coerced” and “duress.”

Additionally, Roggensack pointed out, the legislature had linked section 939.46(1m) by statutory cross-references to section 940.01(2)(d), which specifies that the exercise of certain privileges mitigates a charge of first-degree homicide to second-degree homicide.