The Washington Post - USA (2022-03-06)

SUNDAY, MARCH 6 , 2022. THE WASHINGTON POST EZ RE A

that we need to treat victims with

dignity and respect. And part of

that is acknowledging what actu-

ally happened to them, and Ms.

Kizer undeniably here was a vic-

tim of human trafficking.”

For the justices, the issue ap-

peared to be bipartisan: Karofsky,

a liberal known for her passion for

victims’ rights, was echoed by Jus-

tice B radley, a staunch conserva-

tive. She pointed to the police’s

decision to let Volar go free after

his abuse of another girl was dis-

covered.

“They found evidence that this

34-year-old man was paying girls

for sex, using them to make child

pornography, prostituting them

out to other men,” Bradley said.

Consideration of trauma was

not the only area in which the

court, which has a 4-to-3 con-

servative majority, seemed poised

to break from its traditional vot-

ing blocs.

The justices who model them-

selves after the late Supreme

Court Justice Antonin Scalia —

known for emphasizing the “plain

text” of a law — repeatedly pointed

to the broadness of Wisconsin’s

affirmative defense.

Unlike in many states, where

similar laws specify which crimi-

nal acts victims of trafficking can

use the defense for, Wisconsin’s

law does not.

It says: “A victim of a violation

of [trafficking] has an affirmative

defense for any offense committed

as a direct result of the violation of

BY JESSICA CONTRERA

MADISON, Wis. — In a marble-
walled courtroom in Wisconsin
last week, the state’s Supreme
Court justices found themselves
debating a case about a killing
that occurred nearly four years
ago. Again and again when dis-
cussing what happened, the jus-
tices spoke of someone they said
was clearly a “victim.” But they
were not talking about the man
who died.
They were talking about the girl
who killed him.
“Why,” asked Justice Rebecca
Grassl Bradley, “isn’t Ms. Kizer
entitled to present her defense
that she did this because she was
being trafficked?”
The answer will determine
what happens next to Chrystul
Kizer, a 21-year-old facing life in
prison if convicted of murder for
killing her sexual abuser when she
was 17. Her case has been in limbo
for years, as appeals courts have
debated whether she should have
access to a never-before-used law
that was designed to protect vic-
tims of sex trafficking from being
punished for crimes they commit-
ted that were a “direct result” of
being trafficked.
State prosecutors and Kizer’s
attorneys vehemently disagree
about what “direct result” really
means — and whether the law,
called the affirmative defense, al-
lows for someone to be acquitted
of a charge as serious as first-de-
gree intentional homicide.
In the courtroom and across
the country, advocates in the anti-
trafficking movement were ana-
lyzing the justices’ every word.
They see the case as a critical test
of how far the criminal justice
system has come in understand-
ing the unique psychological and
physical traumas endured by vic-
tims who are coerced into com-
mercial sex or are too young to
consent to being sold.
“This is a real opportunity for
the interpretation and applica-
tion of the law to protect someone
like Chrystul, who is by no means
the first or last victim who could
find herself in these circum-
stances,” said attorney Lindsey
Ruff, whose firm co-wrote a brief
in the case and represents women
trafficked by financier Jeffrey Ep-
stein.

As the Epstein case did, Kizer’s

circumstances have brought in-

ternational attention to the reali-

ties of sex trafficking, highlighting

the way that vulnerable people

can be groomed into abusive rela-

tionships. After being champi-

oned by celebrities and the orga-

nizers of the #MeToo movement,

Kizer’s case received renewed at-

tention during the uprising that

followed the police killing of

George Floyd in 2020.

Her supporters paid her

$400,000 bond, allowing her to

await trial at home in Milwaukee

after two years in jail.

In 2021, her picture went viral

again as social media users com-

pared her to Kyle Rittenhouse, a

White teenager who was acquit-

ted of all charges after he claimed

he acted in self-defense when he

fatally shot two protesters in the

same county, Kenosha, where Kiz-

er is charged. Today, there are

nearly 1.5 million signatures on a

Change.org petition calling for the

charges against her to be dropped.

But even as Kizer has become a

symbol to many, her potential fate

has remained the same. She could

still spend the rest of her life in

prison for the night in 2018 when

she admitted to shooting Randall

P. Volar twice in the head, lighting

his house on fire and fleeing in his

car. She is still living with the

traumatic effects of the exploita-

tion she experienced.

A 2019 Washington Post inves-

tigation showed that the Kenosha

Police Department knew Volar

was abusing underage Black girls

for nearly three months before his

death. After another Black girl

fled from his home, a raid turned

up hundreds of videos of child

sexual abuse in his possession,

including videos he had made of

Kizer and girls who appeared to be

as young as 12. But while the inves-

tigation continued, police and

prosecutors allowed Volar to re-

main free.

“If they had done something, he

would still be alive today,” said

Devore Taylor, Kizer’s mother. “In-

stead, here we are, four years later,

still trying to get through the gar-

bage.”

Kizer herself was not in court

Tuesday as the state’s seven jus-

tices, all of whom are White and

six of whom are women, listened

to the attorneys debate the mean-

ing of the affirmative defense law

for trafficking victims.

“It is not a license for a victim to

kill a trafficker,” said Assistant At-

torney General Timothy M. Bar-

ber. The law, he said, was never

intended for “escape or revenge.”

The state has long contended

that Kizer’s actions were planned,

pointing to messages she sent in

the days leading up to the crime

and the fact that she brought a

gun to Volar’s house and down-

loaded a police scanner app on her

phone.

Kizer has not yet had the

chance to present evidence con-

tradicting that narrative in court

but told police after her arrest that

she was tired of Volar touching

her, and that he was on top of her

on the ground when she went for

the gun. In interviews with The

Washington Post in 2019, Kizer

said Volar was trying to rip her

jeans off.

During the hour-long argu-

ments, multiple justices indicated

that while they believe questions

of premeditation and motive

should be left to a jury, the months

of exploitation Kizer experienced

before the crime would be a major

factor in their decision about the

defense she should be allowed to

present. When Barber described

Kizer’s story as alleging that Volar

had touched her leg, Justice Jill J.

Karofsky cut him off.

“Mr. Barber, I’m sorry, but he

did so much — come on,” Karofsky

scolded. “The constitution says

[trafficking] without regard to

whether anyone was prosecuted

or convicted for the violation of

[trafficking].”

Katie York, a public defender

representing Kizer, argued that

means that as long as Kizer can

prove to a jury that her actions

were a direct result of the traffick-

ing she experienced, she could be

acquitted. Four justices asked

questions suggesting they believe

the “plain text” reading supported

York’s stance.

But the prosecution said the

law applies only to crimes that

were a “direct result” of the ac-

tions of a trafficker, such as a

victim being ordered to commit a

crime. Kizer, Barber said, should

have to rely on the standard self-

defense laws that would require

her to prove she was in imminent

threat of great bodily harm.

Even if Barber loses on that

front, he could win on another:

Instead of Kizer’s being acquitted

of first-degree homicide, he ar-

gued, her charge should be only

mitigated, meaning reduced from

first-degree to second-degree. If

his argument is successful, Kizer

could no longer receive a life sen-

tence, but she could still face up to

60 years in prison if convicted.

Some justices seemed open to that

argument.

It will probably be two to four

months before they release their

written decision, which is expect-

ed to include a set of jury instruc-

tions that will define what kinds of

crimes can be considered a “direct

result” of trafficking.

If Kizer’s public defenders be-

lieve that her circumstances meet

that definition, they will present

their case to a circuit court judge.

If the judge agrees that there is

“some evidence” her crimes fit,

then the case could go before a

jury. Kizer’s team could present

evidence of what she endured,

expert testimony on how trauma

affects the brains of children and

explanations for each act she com-

mitted.

That opportunity would be a

significant shift from previous

cases in which child sex-traffick-

ing victims were charged in the

deaths of their abusers. In most,

evidence about the trafficking

they experienced was ruled inad-

missible or objected to as defam-

ing the deceased. As a result, most

victims with stories similar to Kiz-

er’s have been painted as “child

prostitutes” or juvenile delin-

quents making up stories to cover

their tracks. Most have been con-

victed or taken plea deals for

lengthy sentences.

But as the public has come to

better understand the traumatic

impact of this kind of abuse, con-

victed trafficking survivors, in-

cluding Sara Kruzan, Cyntoia

Brown and Alexis Martin, have

been released from prison.

To them, Kizer’s case is a chance

for the world to understand why

years of manipulation and repeat-

ed rape can make victims feel they

have no choice but to resort to

violence.

“Her actions are a strong reac-

tive symptom of the disease im-

posed on her that was never

healed from the beginning,” said

Kruzan, who is pushing for a fed-

eral law similar to the affirmative

defense.

If Kizer does go to trial, the

attorneys will be choosing jurors

from the same community where

the Rittenhouse case unfolded.

And though the legal defenses will

be different, advocates say the na-

tional attention on the case and

the potential for further unrest

could add pressure on the state to

offer Kizer a plea deal instead of

going to trial.

For Kizer and her family, the

many unknowns translate only to

more waiting.

Since walking out of jail with a

trash bag full of notes from her

supporters, Kizer has been work-

ing jobs in fast food, restaurants

and temp agencies. Taylor, her

mother, is going to school to get a

degree in criminal justice, hoping

to better understand the system

that is prosecuting her daughter.

Taylor said their family is ap-

preciating the moments of nor-

malcy Kizer gets to have, like

jumping on trampolines at her

sister’s birthday party and walk-

ing her stepbrother to school.

She will spend the next few

months waiting for a call from her

lawyers with news of the justices’

decision.

“Chrystul deserves her day in

court, where she can present a full

and fair defense,” her legal team

said in a statement.

The state’s prosecutors de-

clined to comment.

Wisconsin case could be a watershed on sex tra∞cking

SARAH L. VOISIN/THE WASHINGTON POST

Chrystul Kizer attends a court hearing in 2019. She faces life in

prison if she is convicted of murder for killing her sexual abuser. At

issue is a law that was designed to protect victims of sex trafficking.

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