Wisconsin Supreme Court rules for trafficking victim defense

MADISON, Wis. — The state Supreme Court ruled that Chrystul Kizer, charged with the 2018 death of a man she said trafficked her, can use in her defense a Wisconsin law that protects victims of human trafficking from prosecution from certain crimes.

Kizer’s crime must be directly related to her being trafficked in order to use the defense. The Kenosha County judge hearing the case initially blocked her from using the defense, but the high court allowed her to make that case before a jury.

“As both [the Wisconsin appeals court and state Supreme Court] said, the trial court read the statute in error,” said UW-Madison law professor John Gross. “It did not interpret the statute correctly and was prohibiting her from raising a defense that she should have been allowed to raise.”

Gross also described what the process will be for someone like Kizer to try and argue that defense. She will have to produce some evidence to show that the trafficking directly caused the crime, but the burden will still be on the prosecutor to prove without a doubt that the human trafficking defense does not matter.

The court also ruled that it is a “complete defense,” meaning that would acquit her of all murder charges instead of just lowering the severity.

“Some affirmative defenses are mitigated: ‘We’re saying you’re still somewhat culpable for committing this homicide, you still deserve to be punished… but in other cases, a complete defense is: ‘We believe that we shouldn’t punish you for this crime you’ve committed,'” Gross said.

The decision was a matter of the court clarifying state statute, not finding any additional rights, so Gross said the Legislature could change how trafficking victims can make their case going forward.

While the state Supreme Court’s decision Wednesday allows other Wisconsin defenses like Kizer’s to go forward, Gross said it could have implications beyond the border.

“Different state courts certainly look to other state courts and see what they are making a decision about statutes that are the same, which Wisconsin did with California, so you can say this could be the start of a trend,” he said.

Other states could use the example Wisconsin laid out to interpret their own laws regarding trafficking victims.