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SCOW will review scope of statutory affirmative defense for victims of human and child sex trafficking

State v. Chrystul D. Kizer, 2020AP192-CR, petition for review of a published court of appeals decision granted 9/14/21; case activity (including briefs)

Issue Presented (from the State’s PFR)

Does § 939.46(1m) provide a victim of trafficking with a complete defense to first degree intentional homicide?

The defense under § 939.46(1m) 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 read the statute very narrowly, ruling it was available to Kizer “so long as [she] is charged with one of the acts in Wis. Stat. § 940.302(2) ….” None of the charges against Kizer—one of which is first degree intentional homicide of the man she said had been trafficking her—is for “one of the acts in § 940.302(2).” Even the state agreed that the circuit court’s interpretation because it basically ignores the “any offense” language, which is qualified only by the requirement that the offense be a “direct result” the trafficking law violation.

As for the “direct result” requirement, the phrase isn’t defined in the statute, and the parties didn’t entirely agree about what it means. As we explained in our previous post on the case, the court of appeals generally agreed with the state and held, based on various dictionary definitions and case law, that whether the victim’s offense is a direct result” depends on whether it arose relatively immediately from the trafficking violation of which the victim is a victim, was motivated primarily by the trafficking violation, was a logical and reasonably foreseeable consequence of that violation, and was not in significant part caused by events, circumstances, or considerations other than that violation.

Having agreed with Kizer on the “any offense” issue and gotten its way (mostly) on the “direct result” question, the state sought review on a third issue: whether the affirmative defense provides a complete defense to the first degree intentional homicide charge, rather than simply mitigating the offense to second-degree intentional homicide. The court of appeal rejected the state’s argument that § 939.46(1m) only mitigates the offense for the very compelling reason that the statute itself doesn’t say it only mitigates the offense. In this way, § 939.45(1m) is plainly unlike the related 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) itself list the defense as one that mitigates a charge of first-degree to second-degree homicide. As the court of appeals put it: “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….” The decision in this case will, then, will require application of the supreme court’s oft-repeated rule that it only applies statutes as written, and does not presume to re-write them.


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