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SCOW clarifies scope of affirmative defense for victims of human and child sex trafficking

State v. Chrystul D. Kizer, 2022 WI 58, affirming a published court of appeals opinion, 2021 WI App 46, 7/6/22, case activity (including briefs)

There’s been a lot of press on this case, so we’ll skip the facts. Kizer is charged with 1st-degree intentional homicide and other felonies in connection with the death of a man she says trafficked her. She asserts §939.46(1), which provides “an affirmative defense for any offense committed as a direct result” of human or child sex trafficking. In a split decision, SCOW decided two questions of statutory interpretation. Now the circuit court must apply the clarified statute and decide whether Kizer gets a jury instruction on this defense at trial.

Section 939.46(1m) 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.

The main questions on appeal were: (1) what is an offense “committed as a direct result” of a violation of the human trafficking statutes; and (2) does the statute provide a complete defense to 1st-degree intentional homicide or does it just mitigate a 1st-degree conviction to a 2nd-degree conviction?

Justice Dallet wrote the majority opinion, which A.W. Bradley and Karofsky joined. R.G. Bradley joined all of it except ¶¶27-29 and the accompanying footnotes. Roggensack filed a dissent joined by Ziegler and Hagedorn.

Here is the nub of Dallet’s decision:

¶2 We hold 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. We also hold that § 939.46(1m) is a complete defense to first-degree intentional homicide.

Importantly, Dallet stressed that the majority’s definition of “committed as a direct result” is broader (translation: more defense friendly) than the court of appeals’ definition in this case:

¶15 . . . [W]e emphasize that the offense need not be a foreseeable result of the trafficking violation and need not proceed “relatively immediately” from the trafficking violation. Kizer, 398 Wis. 2d 697, ¶15. In this respect, we disagree with the court of appeals’ decision, which interpreted § 939.46(1m) to apply when an offense “arises relatively immediately from” and is a “logical and reasonably foreseeable consequence” of the trafficking violation. See id. We see no basis in the language of the statute for imposing such categorical rules, which would run counter to the ordinary meaning of the phrase “direct result” and the nature of the underlying trafficking crime. Unlike many crimes, which occur at discrete points in time, human trafficking can trap victims in a cycle of seemingly inescapable abuse that can continue for months or even years. See, e.g., Wis. Dep’t of Justice, 2019 Law Enforcement Assessment of Sex Trafficking in Wisconsin 17-18 (2019). For that reason, 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. (Emphasis supplied).

In ¶¶27-29, Dallet holds that §939.46(1m) is ambiguous as to whether it provides a complete defense to 1st-degree murder. When ambiguity exists in a criminal statute, courts apply the “rule of lenity”–i.e. they resolve ambiguities in favor of the defendant unless legislative history clarifies the statute’s meaning. Courts do this in order to avoid usurping the legislature’s function and to ensure that the public receives fair notice of prohibited conduct. Majority, ¶27 (citing State v. Luedtke, 2015 WI 42, ¶73, 362 Wis. 2d 1, 863 N.W.2d 592; State v. Cole, 2003 WI 59, ¶67, 262 Wis. 2d 167, 663 N.W.2d 700; and State v. Quintana, 2008 WI 33, ¶66, 308
Wis. 2d 615, 748 N.W.2d 447).

Because legislative history does not clarify the ambiguity in §939.46(1m), the majority relies on the rule of lenity to hold that it provides a complete defense.

In long footnotes, Dallet writes that “there is some variation across our cases and the federal courts as to when the rule of lenity applies.” Plus she admits that using legislative history to clarify a criminal statute may be at odds with giving the public fair notice of prohibited conduct. Majority, ¶27 n. 9-10.

R.G. Bradley, pointing to the majority and dissenting opinions, notes that reasonable minds differ on whether the statute provides a complete defense to 1st-degree murder. As a result, SCOW must apply the rule of lenity in this case. That’s why she joins the majority and not Roggensack’s dissent, which uses common law, model legislation, and a lot of statutory cross-references to conclude that §939.46(1m) does not provide a complete defense. See R.G. Bradley’s concurrence, Roggensack’s dissent. 

R.G. Bradley does not join the majority entirely because she objects to the idea that a court may apply the rule of lenity except when legislative history clarifies the statute’s meaning. She argues that a court may not consult legislative history before applying the rule of lenity. R.G. Bradley’s concurrence, ¶33.

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