After the Kyle Rittenhouse case, many have brought attention to the Chrystul Kizer case. A case where the Kenosha County DA office is prosecuting a victim of child sex trafficking. The case is currently pending and provides a very interesting set of facts and questions of law.
The Alleged Facts
The case is still in the early stages and not all the facts are known, the following are all alleged and nothing has been proven in court. Chrystul Kizer is now 21 years old but when she was 15 or 16 she met Randy Volar through backpage.com who was in his early thirties. He began raping her and filming it. The age of consent in Wisconsin is 18, so under the law, Chrystul, a teenager, could not have consented to any sexual activity. Further, any filming of the rapes constitutes the production of child sexual abuse material (otherwise known as child porn, a disfavored term). In addition to raping Chrystul and filming it, Volar is alleged to have also forced or coerced Chrystul to engage in sexual acts (rapes) with other men for money. If these facts are true, Volar sex-trafficked Chrystul.
In June 2018, she allegedly took an Uber to Kenosha to kill Volar because she was tired of him “touching on her.” According to the facts alleged by the prosecution, she brought a gun and planned to kill Volar. While at his house, she shot him twice in the head, she may have taken a selfie at his house and filmed a Facebook live bragging about the murder. Then she allegedly set his house on fire, stole his car, drove it back to Milwaukee, and gave it to her brother.
The Kenosha County District Attorney’s office charged Chrystul with first-degree intentional homicide, operating a motor vehicle without the owner’s consent, arson, possession of a firearm by a felon, and bail jumping. This is the same office that prosecuted Kyle Rittenhouse. Now it is important to note that prior to the DA’s decision to prosecute Chrystul there was evidence she was a victim of child sex trafficking and Volar was her trafficker. Prosecutors have the sole discretion to prosecute or decline to prosecute a case. Why would they decide to prosecute a victim of child sex trafficking who killed her trafficker? It might have something to do with the fact that in February 2018, another 15-year-old girl accused Volar of rape and filming himself raping her. The police investigated him, executed a search warrant, and seized some items from his house. There is evidence he had multiple victims other than Chrystul. He was arrested and charged but somehow was released without a court appearance or posting bail.
If Volar had been prosecuted, Chrystul would not have had the opportunity to kill him. Maybe he would still be alive and in jail for life. Instead, Chrystul is facing a life sentence. Maybe the DA’s office is attempting to cover up their own negligent handing of Volar.
Case Status
Chrystul’s case is still pending and her trial has yet to start. In a pretrial conference, her defense attorney brought up the fact that she was a child sex trafficking victim and they planned to use that as a defense to the charges. Wisconsin, like 35 other states, has a law that provides an affirmative defense to victims of human trafficking. This affirmative defense, like self-defense, would provide legal justification for a crime. Meaning the defendant would admit they committed the offense, but because a legal justification was raised, the state would have to disprove that legal justification beyond a reasonable doubt in order to get a conviction.
The Wisconsin law is very broad in that it provides an affirmative defense to “any offense committed as a direct result of the violation of Wis. Stat. 940.302(2) or 948.051” the human trafficking statutes. Laws like this have been passed so victims of human trafficking aren’t charged with crimes like prostitution. As absurd as that sounds, it’s very common for teenagers (and adults) who are being sex trafficked - forced to be raped by adults for money - to be charged with prostitution. To combat this, many states have passed laws that provide an affirmative defense to victims of human trafficking. The issue in Chrystul’s case is whether or not this law would allow her a defense to the murder of her trafficker.
The circuit judge (a different judge than the judge in Kyle’s case) decided that no, the Wisconsin law could not be used by Chrystul’s defense because she was not charged with any of the acts in 940.302.
Chrystul appealed the circuit judge’s ruling and filed an interlocutory appeal to the Wisconsin appellate court. An interlocutory appeal is a special appeal prior to (or sometimes during) a trial. In briefs to the Wisconsin appellate court, both the state and Chrystul’s attorneys disagreed with the circuit judge’s ruling but for different reasons. The defense argued that the statute should operate as a legal justification like self-defense. That if at trial the defense presents evidence that Chrystul was a victim of sex trafficking and the murder was a direct result of that trafficking, that the state would have to prove beyond a reasonable doubt that this defense would not apply. Thus, if the jury believed that the murder was a direct result of child sex trafficking, they would have to acquit Chrystul. The state argued that the statute should not be an affirmative defense, rather it should only reduce the first-degree intentional murder charge down to second-degree intentional murder, essentially the sex trafficking evidence would act as a mitigating factor only.
Ultimately, the issue is one of statutory interpretation, in other words figuring out what a law means. The appellate court decided that the plain language of the law is that it grants an affirmative defense to trafficking victims for any crime that is a “direct result” of their trafficking. Therefore, the appellate court agreed with the defense and overruled the circuit court. The State appealed this decision and the case is currently pending before the Wisconsin Supreme Court.
It is an untenable position for the state to be defending a child rapist, producer of child sexual abuse material, and child sex trafficker with at least two known victims while prosecuting the victim of these horrendous crimes. But as we have seen with Kyle’s case, the DA’s office has no problem with defending pedophiles and prosecuting children as adults. As if the voters in Kenosha didn’t have enough reasons to vote out the DA, Michael D. Graveley, Chrystul’s case provides more.