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Defense win: Court of Appeals addresses when affirmative defense for trafficking victim “directly results” from trafficking violations

State v. Chrystul D. Kizer, 2021 WI App 46, state’s petition for review granted 9/14/21, affirmed, 2022 WI 58; case activity (including briefs)

The court of appeals gives the affirmative defense in § 939.46(1m) for victims of human trafficking and child sex trafficking its ordinary, common-sense meaning, and rejects the crabbed reading given the statute by the circuit court.

Kizer was charged with multiple felonies, including first-degree intentional homicide for killing the man who she said had been trafficking her in violation of § 940.302. Pretrial, she asserted she would raise the defense under § 939.46(1m), which provides an affirmative defense for victims of human trafficking (or child sex trafficking in violation of § 948.051) for “any offense committed as a direct result of the violation of s. 940.302(2) or 948.051.” The circuit court interpreted the defense narrowly, ruling it was available to Kizer “so long as [she] is charged with one of the acts in Wis. Stat. § 940.302(2) … and … the cause of the offenses listed in § 940.302(2) was the victimization, by others, of” Kizer. None of the charges against Kizer is for “one of the acts in § 940.302(2).” (¶3).

Kizer and the state agree the circuit court was wrong to limit the defense to offenses listed in § 940.302, as that basically ignores the “any offense” language when the only qualification on that category is whether the offense was a “direct result” the trafficking law violation. “Direct result,” however, isn’t defined in the statute, and the parties don’t agree about that. (¶4). The court looks to various dictionary definitions and some case law that bears on the meaning of the phrase (¶¶8-14) and concludes:

¶15     Considering the different dictionary definitions and court decisions related to the terms “direct” and “direct result,” some guidance emerges. In determining whether a jury should be instructed on whether the commission of a particular offense by a trafficking victim is a “direct result” of “the violation of [Wis. Stat. §§] 940.302(2) or 948.051,” a court should consider whether there is “some evidence” to support such a finding based on whether the victim’s offense arises relatively immediately from the trafficking violation of which the victim is a victim, is motivated primarily by the trafficking violation, is a logical and reasonably foreseeable consequence of that violation, and is not in significant part caused by events, circumstances or considerations other than that violation. See State v. Schmidt, 2012 WI App 113, ¶¶8-9, 344 Wis. 2d 336, 824 N.W.2d 839. This is not intended as an exhaustive list of factors for a court to consider in making such a determination; rather, it is merely intended to provide some guidance.

The other issue the court resolves is what effect the affirmative defense has on the first-degree intentional homicide charge. The state argues it does not provide a complete defense, but mitigates it second-degree intentional homicide. (¶16). The court rejects this argument because the statute itself doesn’t say that, unlike a number of other related and surrounding affirmative defense statutes (§§ 939.44(2), 939.46(1), 939.47) that explicitly state the charge is mitigated to second degree. Nor does § 940.01(2) list the defense as one that mitigates a charge of first-degree to second-degree homicide. (¶¶17-22). “Had the legislature intended to limit [§939.46](1m) in the way the State suggests, we are convinced it would have plainly said so, just as it did in these three surrounding statutory provisions…. Thus, as far as the first-degree intentional homicide charge against Kizer is concerned, if the § 939.46(1m) affirmative defense is deemed applicable to that charge, it would, if successful, act as a complete defense and not simply mitigate the charge to second-degree intentional homicide.” (¶23).

This is an interlocutory appeal, so the factual record is limited. That means the court is not deciding whether Kizer is factually entitled to raise and get the jury instructed on the defense at trial. She’ll need to put forth “some evidence” to support the defense, at which point the state will have the burden to prove the defense does not apply. (¶7 n.3). But the decision is a great legal victory for her and others nonetheless, for it makes the affirmative defense meaningful and broadly available.


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