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Wisconsin court: Sex trafficking can be defense for homicide

Chrystul Kizer waits to appear in Kenosha County Circuit Court Friday, June 25, 2021, for a status hearing. Kizer was 17 when she was charged in June 2018 with with first-degree intentional homicide, arson and auto theft. She allegedly shot and killed Randall Volar III, 34, before setting his Kenosha home on fire and fleeing in his car.
Mark Hertzberg for the Kenosha News
Chrystul Kizer waits to appear in Kenosha County Circuit Court Friday, June 25, 2021, for a status hearing. Kizer was 17 when she was charged in June 2018 with with first-degree intentional homicide, arson and auto theft. She allegedly shot and killed Randall Volar III, 34, before setting his Kenosha home on fire and fleeing in his car.

Updated Thursday at 8:44 a.m. CDT

A sex trafficking victim accused of killing a man who allegedly trafficked her can argue at trial that she was justified in killing him, Wisconsin’s Supreme Court ruled Wednesday in a decision that could help define the limits of legal immunity for trafficking victims nationwide.

Prosecutors say Chrystul Kizer traveled to Randall Volar’s home in Kenosha in June 2018. Kizer, who was 17 at the time, shot him in the head, burned down the house and stole his BMW, according to court documents.

Kizer, now 22, contends she met Volar on a sex-trafficking website. She says he sexually assaulted her and sold her to others for sex. She told detectives she shot him after he tried to touch her, according to the criminal complaint.

Her attorneys have argued that she’s immune from prosecution under a 2008 state law that absolves sex trafficking victims of any offenses resulting from being trafficked. Nearly 40 states have passed laws that give trafficking victims at least some level of criminal immunity, according to Legal Action of Wisconsin, which provides legal help for low-income people.

They had planned to invoke the immunity law at her trial on charges that include arson and first-degree intentional homicide, but Kenosha County Circuit Judge David Wilk refused to allow it. He ruled that immunity extends only to trafficking-related charges such as restraining someone, extortion, prostitution or slave labor. An appellate court ruled last year, however, that Kizer could argue that the law shields her from prosecution.

State attorneys asked the high court to reverse that decision, maintaining that the immunity statutes can’t possibly extend to homicide. First-degree intentional homicide carries a mandatory life sentence. Prosecutors have also argued Kizer's actions against the man were premeditated.

Assistant Attorney General Timothy Barber said during oral arguments in March that Kizer’s interpretation would create an unprecedented expansion of the self-defense doctrine, eliminating any questions about whether killing someone was reasonable or necessary.

The Wisconsin Supreme Court decision isn’t binding on other states but could inform attorney strategies in similar cases elsewhere in the country, legal experts say.

Wisconsin Attorney General Josh Kaul released a statement Wednesday saying the decision ''brings needed clarity regarding the scope of the affirmative defense for survivors of the vile crime of human trafficking."

An affirmative defense is where the defendant can introduce evidence, if found credible, that can negate criminal liability, even if it's proven the accused committed the alleged acts.

Milwaukee defense attorney Julius Kim, who's not connected to the Kizer case, says if it does go to trial, Kizer will still face a challenge.

"At trial, Chrystul Kizer would have to present this affirmative defense, and say, 'Listen, this may have happened, but it happened because I was the victim of human sex trafficking.' Once she presents some evidence in that regard, the state will have an opportunity to rebut that, or to dispel that particular assertion. But they have to do it with evidence that satisfies a jury beyond a reasonable doubt that that really wasn't the reason she committed these offenses," Kim told WUWM.

Anti-violence groups lined up to support Kizer, filing legal briefs in her case saying that trafficking victims often feel so trapped they believe they have to take matters into their own hands.

Ian Henderson of the Wisconsin Coalition Against Sexual Assault helped file a multi-party brief, and says he hopes the ruling also helps other trafficking victims facing charges.

"The decision allows not only Chrystul, but hopefully — if there are victims of trafficking in the future, who are accused of committing any crime, right — if that crime is a result of the trafficking, that they will have protections that the law affords them," Henderson told WUWM.

Some advocates for sexual abuse victims say they want Kenosha County District Attorney Mike Graveley to now drop the charges against Kizer. The DA has not responded to our request for comment. But there is a status conference scheduled for the Kizer case in mid-September in Kenosha County Circuit Court.

The Associated Press does not typically identify people who say they are sexual assault victims, but Kizer discussed her case in an interview from jail with The Washington Post that was published in 2019.

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