A rape victim who killed her alleged abuser stands a chance of ultimately prevailing in court on an affirmative defense after a blockbuster ruling by the Supreme Court of Wisconsin on Wednesday.
As Law&Crime previously reported, Chrystul Kizer was just 16 years old when 33-year-old Randall Phillip Volar III began sexually abusing her and recording his acts on film as part of his long history of producing child sexual abuse material.
Kizer was just one of numerous underage Black victims that police believe the wealthy, white alleged pedophile was abusing.
When she was 17, Kizer killed Volar by shooting him twice in the head. After that, she set his body on fire and fled in his car.
She was subsequently arrested and charged with several felonies including arson and murder in the first degree. Now 22, the defendant has never disputed the facts of her violence.
Instead, she and her lawyers have been locked in a battle with local prosecutors over the meaning of a state law, and whether it applies to her situation.
A relatively new law in the Badger State provides victims of human trafficking or child sex trafficking with “an affirmative defense for any offense committed as a direct result” of said trafficking “without regard to whether anyone was prosecuted or convicted” for the underlying sex crime or crimes.
In a 4-3 decision, the state’s highest court ruled in her favor on two discrete questions, and in so ruling, allowed Kizer’s case to move forward.
The case was decided by a combination of three liberal justices with one conservative justice breaking ranks. The court’s other three conservatives voted against Kizer. While judicial elections in Wisconsin are formally nonpartisan affairs, campaigns are conducted with knowledge of where a nominee stands politically.
Liberal Justice Rebecca Dallet wrote for the majority. Conservative Justice Rebecca Grassl Bradley joined the majority in large part but penned a concurrence to explain that while she did not agree with certain statutory interpretation methods used by the three liberals, she ultimately agreed with the conclusion.
The court was asked, for the first time, to clarify the meaning of the law in question. To get that answer, the two specific questions the court was asked to address were: (1) what “offense committed as a direct result of the [sex crime] violation” actually means; and (2) how far a defendant’s would-be “affirmative defense” actually goes.
The majority explains the locus of the dispute:
Section 939.46(1m) does not define what it means for an offense to be “committed as a direct result” of the trafficking offense. Nor does the statute state expressly whether it is a complete defense to first-degree intentional homicide or if it is a mitigating defense——a defense that, if successful, reduces a first-degree intentional homicide to a second-degree one. We address those two disputed issues in turn.
The majority notes several words in the statute lack corresponding legal definitions elsewhere in state law that would otherwise be controlling or particularly helpful. The majority also observes that the statute offered little in the way of generally-accepted legal terms of art. Similar statutes in other states are also of no help, the opinion notes, because they also lack corresponding definitions to key words and phrases.
In deciding the first question, the opinion ultimately relies on several dictionary definitions and the “common, everyday meaning” of the words in the statute.
“[W]e conclude 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,” Dallet writes.
The court’s ruling is an even more liberal interpretation of the statute allowed by the appellate court, which had also ruled in Kizer’s favor. That lower court ruling suggested that Kizer would have to prove a very narrow timeframe in terms of the connection between the sex abuse and her retributory violence.
But there’s simply no such timeframe envisioned by the state statute, the justices said in the opinion.
“Additionally, we emphasize that the offense need not be a foreseeable result of the trafficking violation and need not proceed ‘relatively immediately’ from the trafficking violation,” Dallet goes on. “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.”
The majority explains that both the statute itself and the underlying crime it aims to deal with give cause for such an interpretation:
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. 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.
The second question — whether the affirmative defense provided by the statute is a way to mitigate a charge or whether it creates a perfect or complete defense — was also settled in Kizer’s favor.
The state argued for the mitigation angle based on “two related statutes” that have to do with privileges afforded to crimes committed “under circumstances of coercion.” Kizer, on the other hand, pointed out that the statute she actually relies on lacks any “explicit mitigation language” and that other Wisconsin statutes do, in fact, typically contain express mitigation language.
“This context suggests that a defense is complete as to first-degree intentional homicide unless the statute contains express language regarding mitigation,” the court says – before hedging a bit by saying the competing theories of interpretation are debatable and have only really shown that this part of the statute is ambiguous.
Still, the court sided with Kizer by employing the rule of lenity “to resolve the ambiguity in the defendant’s favor unless the legislative history clarifies the statute’s meaning,” invoking a timeless canon of construction that, while it is seldom applied, works to vindicate individual liberty interests over carceral interests of the state.
“We also hold that § 939.46(1m) is a complete defense to first-degree intentional homicide,” the majority says.
Now Kizer will have the opportunity to present her full defense to the trial judge – who will later issue a ruling.
Kizer has long intended to be the first Wisconsin sex trafficking survivor to use the statute as the basis of her defense, and her case has become a cause célèbre among victims’ rights advocates.
“Chrystul Kizer deserves a chance to present her defense and today’s decision will allow her to do that,” Public Defender Colleen Marion said Wednesday in a statement obtained by The Washington Post. “While the legal process on this matter is far from over, we, along with Chrystul and her family, believe the decision today affirms the legal rights provided by Wisconsin statute to victims of sex trafficking facing criminal charges.”
[image via screengrab/WISN]
