At the heart of the debate is whether Kizer, now 21, should have access to a law known as the affirmative defense. In June, an appeals court ruled that Kizer should indeed have the chance to present evidence that her crime was a “direct result” of the trafficking she experienced. If a judge, and then a jury, ruled in her favor, Kizer could then be acquitted of some or all the charges against her in the death of Randall Phillip Volar III.
But prosecutors appealed the June ruling, arguing that the affirmative defense law was never intended to provide a complete defense to someone accused of committing a homicide.
Now, the seven justices of Wisconsin’s highest court will decide what they believe the true meaning of the state’s affirmative defense law is, and whether it applies to Kizer.
The case comes at a time when police, prosecutors, judges and lawmakers across the country are re-examining the way trafficking victims are treated in the criminal justice system. People who experience trafficking are likely to be coerced or forced to break the law by their abusers, or may commit crimes in attempts to escape or defend themselves.
Anti-trafficking advocates across the country have pointed to Kizer’s case as an example of where the law should take into consideration the abuse that Kizer experienced.
Kizer is considered a trafficking victim because she was too young to consent to being sold for sex. She was 16 when Volar, 34, began filming his sexual abuse of her, allegedly in exchange for cash, food and gifts. Volar, a White man, was also filming his abuse of multiple other underage Black girls.
A 2019 Washington Post investigation showed that Kenosha police knew about the abuse of these girls for more than three months. They had raided Volar’s home after a drugged 15-year-old girl ran from it, calling 911 to say Volar was going to kill her. Inside, police found Volar’s videos, along with “hundreds” of other child abuse videos.
But Volar remained free, even after the evidence was handed over to prosecutors. Then in June 2018, officers were called back to the house, which had been set on fire. Volar was dead inside, shot twice in the head. His BMW was missing.
They soon arrested Kizer, a 17-year-old living an hour’s drive north in Milwaukee. She was charged as an adult with arson, stealing a vehicle and first-degree intentional homicide, an offense that carries a mandatory life sentence in Wisconsin.
In interviews with The Post, Kizer said she was trying to defend herself because she did not want to comply with Volar’s demands for sex. Prosecutors say the evidence shows the killing was premeditated, and that Kizer continued contact with Volar after the 34-year-old tried to end their arrangement. Kenosha District Attorney Michael Graveley, who made headlines for his involvement in the Jacob Blake and Kyle Rittenhouse cases, has repeatedly said he believes Kizer’s motive was to steal Volar’s BMW.
Both sides will now submit their written arguments to the Wisconsin Supreme Court, and will likely hold oral arguments before the justices in the coming months.
But rather than examining the grim details of the case, they will be debating their interpretations of the state’s affirmative defense law.
The law is similar, but broader than most laws across the country intended to protect trafficking victims involved in crimes. While most states specify which crimes the protection applies to — such as prostitution, drug possession or fraud — Wisconsin’s law does not. It states that trafficking victims have an affirmative defense “for any offense committed as a direct result” of being trafficked.
The attorneys have been sparring over a small but significant detail: the spot where the affirmative law was placed into Wisconsin statute by legislators. The law was inserted beneath a statute that describes first-degree intentional homicide charges being reduced to second-degree intentional homicide.
Prosecutors have stated that the same should be true for Kizer, meaning that rather than be handed a life sentence, she would face up to 60 years in prison.
Kizer’s attorneys disagree. They contend that the lawmakers’ choice to use the phrase “any offense” does in fact mean “any offense,” including homicide. They believe that the statute provides a “complete defense” to the charges, meaning that if a jury agrees Kizer’s crime was a “direct result” of the trafficking she experienced, she could go free.
It will likely be multiple months before Wisconsin’s highest court decides whether to uphold or overturn the lower court’s ruling, which currently stands in Kizer’s favor. For Kizer, who was released on bond in the summer of 2020, that means her trial could still be years away.
In the meantime, at least three cases similar to hers — where child trafficking victims are charged with murder — are playing out in Texas and Pennsylvania. All involve children of color. State and federal lawmakers are pushing bills to provide more protection for trafficking victims charged with crimes.
Becca Donaldson, an attorney for Legal Action of Wisconsin, which filed a brief in support of Kizer, said that while each state’s affirmative defense laws are different, the results of this case could benefit trafficking victims charged with crimes across the country.
“The anti-trafficking community is looking for ways for survivors, especially survivors of color, to have the ability to tell people what has happened to them,” Donaldson said, “And, have the opportunity for people to believe them.”