The court’s decision, which has been pending for over a year, comes as legislatures and judges across the country are reevaluating how the unique abuse trafficking victims experience should be taken into consideration in the legal system.
The majority of states have laws that offer protection to people who can show that a crime they committed — such as prostitution, drug possession or fraud — happened because they were being trafficked.
But when the crime in question is a violent offense, anti-trafficking advocates and prosecutors are divided over how much leeway these victims should be offered.
In Kenosha, prosecutors argue that when Kizer was 17, she planned the 2018 murder of 34-year-old Randall Phillip Volar III in order to steal his BMW. Kizer says she was defending herself after Volar, who had been filming his abuse of her since she was 16, pinned her to the floor when she refused to have sex with him.
The two sides have been at odds over the meaning of Wisconsin’s affirmative defense law, which is somewhat similar to laws around self-defense. It states that trafficking victims have a legal defense “for any offense committed as a direct result” of being trafficked.
Prosecutors argued that “any offense” did not include homicide and that even if it did, Kizer’s charges should only be lowered to lesser ones. But the appeals court agreed with Kizer’s lawyers, who argued “any offense” did indeed mean “any offense.”
If Kizer and her attorneys can prove to a judge that there is “some evidence” her crime was a “direct result” of her trafficking, then she will probably go before a jury. If that jury agrees that her charges were a “direct result” of her victimization, she would be found not guilty.
Kizer’s case gained national attention after a Washington Post article showed that Kenosha police and prosecutors knew that Volar, a White man, was abusing Kizer and other underage Black girls before his death.
Three months before Volar’s death, a 15-year-old was found fleeing from his home after she called 911 to say he had drugged her and was going to kill her. Police raided the house and found “hundreds” of child pornography videos and more than 20 “home videos” of Volar abusing girls who appeared to investigators to be as young as 12 years old. While the investigation unfolded, Volar remained free.
Kizer told The Post that Volar had been paying her for sex since she was 16 and drove her to hotel rooms where she was sold to other men who sexually abused her. On June 5, 2018, Kizer allegedly shot and killed Volar, set his house on fire and fled in his car.
Kenosha County District Attorney Michael Graveley, who waited to charge Volar for sex crimes, then charged Kizer with first-degree intentional homicide, an offense that carries a mandatory life sentence in Wisconsin.
But Kizer remained behind bars until last summer, when the nationwide protests following the death of George Floyd brought renewed interest to her case. The Chicago Community Bond Fund, an advocacy group that was flooded with support as it worked to free jailed protesters, used donations to pay Kizer’s $400,000 bail so she could live in Milwaukee with her mother while awaiting trial.
By summer’s end, Graveley was in the spotlight again after a Kenosha police officer was filmed firing seven shots into the back of Jacob Blake, leaving the 29-year-old Black father partially paralyzed. In the midst of the protests that followed, Kyle Rittenhouse, a White 17-year-old, allegedly shot and killed two demonstrators and wounded a third.
In January, Graveley announced that he would not bring charges against the officer who shot Blake, saying there was not enough evidence to outweigh the argument that the officer was trying to protect himself. Rittenhouse is expected to go before a jury in November.
Nearly three years after she was arrested, there is no jury trial scheduled in Kizer’s case. The attorneys have been awaiting a decision from the appeals court since December 2019, when Judge David Wilk ruled that in his view, Kizer did not have access to the affirmative defense.
The proceedings could be delayed further if prosecutors decide to appeal the new ruling to Wisconsin’s Supreme Court, a process that could take a year or more.
Graveley contends that the case is not about trafficking, but about an intentional homicide. Revealing some of the evidence he would present to a jury, Graveley has stated in court that in days before the murder, Kizer told a friend that she would soon be the owner of a BMW.
Once at Volar’s home, Graveley said, Kizer sent texts that appear to show she was waiting for the right moment to use the gun she brought to the home, saying “I’m finna do it.” She posted a selfie from the house captioned “My Mug Shot.” In the minutes after a neighbor heard the sound of a gunshot coming from the house, Graveley said, Kizer appeared to download a police scanner app on her phone.
“None of that, judge — none of that — is self-defense,” Graveley argued at a February 2020 hearing. “All of the motives I’ve just described are motives consistent with a person who is committing an intentional homicide.”
Kizer also has the possibility of taking a plea deal, something she has previously indicated to the judge that she would be willing to do.
“I’m not looking to walk out of your courtroom with nothing. I come to you and Randall’s family with a sincere heart of apologies for what I have done,” Kizer wrote to Wilk from jail in March 2020.
But the appeals court ruling gives her attorneys more options moving forward, and increases her chances of being acquitted.
The decision could also have bearing on whether other states with broad affirmative defense laws, including Iowa, Oklahoma, South Carolina and Wyoming, allow individuals to employ them when charged with violent offenses. It may also influence how new affirmative defense laws, which are a priority of anti-trafficking advocates, are written.
“We could not have gotten a better decision‚” said Diane Rosenfeld, director of Harvard Law School’s gender violence program, which was involved in writing a brief in the case. “If the state had taken more seriously what Volar was doing, not only to Chrystul but to all these other girls, arguably Chrystul wouldn’t have been in this position."
Since being released from the Kenosha jail, Kizer has been spending time with her family and waitressing. She will return to court later this month.