State v. Chrystul D. Kizer

2022 WI 58SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP192-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Chrystul D. Kizer,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 398 Wis. 2d 697, 963 N.W.2d 136PDC No:2021 WI App 46 - Published
OPINION FILED: July 6, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 1, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Kenosha
JUDGE: David P. Wilk
JUSTICES:
DALLET, J., delivered the majority opinion of the Court with
respect to all parts except ¶¶27-29 & n. 9-11, in which ANN
WALSH BRADLEY, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ.,
joined, and an opinion with respect to ¶¶27-29 & n. 9-11, in
which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. REBECCA
GRASSL BRADLEY, J., filed a concurring opinion. ROGGENSACK, J.,
filed a dissenting opinion in which ZIEGLER, C.J., and HAGEDORN,
J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by Timothy M. Barber, assistant attorney general, with
whom on the briefs was Joshua L. Kaul, attorney general. There
was an oral argument by Timothy M. Barber.
For the defendant-appellant, there was a brief filed by
Katie R. York and Colleen Marion, assistant state public
defenders. There was an oral argument by Katie R. York.
An amicus curiae brief was filed by Caitlin Kendall Noonan,
Rebecca Donaldson, Erika Jacobs Petty, and Legal Action of
Wisconsin, Inc., Milwaukee and Lotus Legal Clinic, Inc.,
Brookfield, for Legal Action of Wisconsin, Inc. and Lotus Legal
Clinic, Inc.
An amicus curiae brief was filed by Naikang Tsao, Lynn
Hecht Schafran, Jennifer M., Becker, Sigrid McCawley, Lindsey
Ruff, and Foley & Lardner LLP, Madison, Legal Momentum, New York
City, and Boies Schiller Flexner LLP, New York City, for Legal
Momentum, Wisconsin Coalition Against Sexual Assault, Harvard
Law School Gender violence Program, Cornell Law School Gender
Justice Clinic, Diverse & Resilient, Jewish Women International,
Lovelace Consulting Services, Inc., National Alliance to End
Sexual Violence, National Coalition Against Domestic Violence,
Rights4Girls, Sanctuary for Families, The Institute to Address
Commercial Sexual Exploitation, and World Without Exploitation.
2
2022 WI 58NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP0192-CR
(L.C. No. 2018CF0643)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED
v. JUL 6, 2022
Chrystul D. Kizer, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
DALLET, J., delivered the majority opinion of the Court with
respect to all parts except ¶¶27-29 & n. 9-11, in which ANN
WALSH BRADLEY, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ.,
joined, and an opinion with respect to ¶¶27-29 & n. 9-11, in
which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. REBECCA
GRASSL BRADLEY, J., filed a concurring opinion. ROGGENSACK, J.,
filed a dissenting opinion in which ZIEGLER, C.J., and HAGEDORN,
J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA FRANK DALLET, J. In Wisconsin, victims of
human trafficking or child sex trafficking have "an affirmative
defense for any offense committed as a direct result" of the
No. 2020AP0192-CR
trafficking. See Wis. Stat. § 939.46(1m) (2019-20).1 Chrystul
Kizer wants to rely on this defense when she is tried on charges
of first-degree intentional homicide and several other felonies
in connection with the death of the man she says trafficked her.
We do not decide whether Kizer may rely on this defense at
trial. Instead, we decide two general questions regarding the
interpretation of § 939.46(1m) and the scope of the defense.
First, what does it mean for an offense to be "committed as a
direct result of the violation" of the human-trafficking
statutes? And second, is § 939.46(1m) a complete defense to
first-degree intentional homicide or does it merely mitigate a
first-degree conviction to a second-degree one?
¶2 We hold that an offense is "committed as a direct
result" of a violation of the human-trafficking statutes if
there is a logical, causal connection between the offense and
the trafficking such that the offense is not the result, in
significant part, of other events, circumstances, or
considerations apart from the trafficking violation. We also
hold that § 939.46(1m) is a complete defense to first-degree
intentional homicide. Accordingly, we affirm the court of
appeals' decision.
I
¶3 This case is still in a pre-trial posture and we
therefore state the facts as described in the criminal
1 All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
2
No. 2020AP0192-CR
complaint. In June 2018, Kizer traveled from Milwaukee to the
Kenosha home of the man she says trafficked her. Kizer
allegedly admitted to detectives that after she arrived, she
"had gotten upset and she was tired of [him] touching her," and
shot him. Kizer then started a fire at the house and drove away
in his car. She was subsequently charged 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.
¶4 At a pre-trial conference, Kizer's counsel suggested
that her defense at trial would rest at least in part on
§ 939.46(1m). After the State argued that the defense was not
available to Kizer, the circuit court2 ordered briefing and
argument on that issue and the scope of the defense. The
circuit court determined that the defense "is available to
[Kizer] so long as [she] is charged with one of the acts in
§940.302(2) . . . and . . . the cause of the offenses listed in
940.302(2) was the victimization, by others, of" Kizer. That
meant that Kizer could not rely on the defense, since she was
The Honorable David P. Wilk of the Kenosha County Circuit
2
Court presiding.
3
No. 2020AP0192-CR
not charged with a violation of § 940.302(2), which prohibits
human trafficking.3
¶5 The court of appeals granted Kizer's petition for
leave to file an interlocutory appeal and reversed the circuit
court's decision. See generally State v. Kizer, 2021 WI App 46,
398 Wis. 2d 697, 963 N.W.2d 136. There, as here, Kizer and the
State agreed that the circuit court's interpretation of
§ 939.46(1m) was incorrect, since the defense applies to "any
offense committed as a direct result of the violation of
s. 940.302(2) or 948.051 without regard to whether anyone was
prosecuted or convicted for the violation of s. 940.302(2) or
948.051." § 939.46(1m) (emphases added); see also Kizer, 398
Wis. 2d 697, ¶4. Before the court of appeals, however, the
parties disagreed about what it means for an offense to be
"committed as a direct result of the violation" of the human-
trafficking statutes, as well as whether § 939.46(1m) is a
complete or mitigating defense to first-degree intentional
homicide. See Kizer, 398 Wis. 2d 697, ¶¶5, 7. The court of
appeals held that, when determining whether to instruct a jury
on the defense, circuit courts should consider whether there is
"'some evidence'" that "the victim's offense arises relatively
3 Although the circuit court analyzed § 939.46(1m) as if
Kizer were a victim of human trafficking under § 940.302(2),
Kizer maintains that she is a victim of child sex trafficking,
which is prohibited by § 948.051. Because we analyze the
meaning of § 939.46(1m) in the abstract, and not whether it
applies to Kizer's particular circumstances, we do not decide
whether she is a victim of human trafficking, child sex
trafficking, or both.
4
No. 2020AP0192-CR
immediately from the trafficking violation of which the victim
is a victim, is motivated primarily by the trafficking
violation, is a logical and reasonably foreseeable consequence
of that violation, and is not in significant part caused by
events, circumstances or considerations other than that
violation." Kizer, 398 Wis. 2d 697, ¶15 (quoting State v.
Schmidt, 2012 WI App 113, ¶¶8-9, 344 Wis. 2d 336, 824
N.W.2d 839). This list, the court of appeals emphasized, was
non-exhaustive and simply intended to provide some guidance to
circuit courts. See id. The court of appeals also concluded
that § 939.46(1m) is a complete defense to first-degree
intentional homicide. See id., ¶23. We granted the State's
petition for review.
II
¶6 This case involves the interpretation of § 939.46(1m),
which is a question of law that we review de novo. See, e.g.,
State v. Matthews, 2021 WI 42, ¶7, 397 Wis. 2d 1, 959
N.W.2d 640. "[S]tatutory interpretation begins with the
language of the statute. If the meaning of the statute is
plain, we ordinarily stop the inquiry." State ex rel. Kalal v.
Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110. "The goal of statutory interpretation is to give
the statutory text its 'full, proper, and intended effect.'"
Matthews, 397 Wis. 2d 1, ¶9 (quoting Kalal, 271 Wis. 2d 633,
¶44). To that end, we "generally give words their common,
everyday meaning, 'but we give legal terms of art their accepted
5
No. 2020AP0192-CR
legal meaning.'" Id. (quoting Estate of Matteson v. Matteson,
2008 WI 48, ¶22, 309 Wis. 2d 311, 749 N.W.2d 557).
III
¶7 We begin with the full text of § 939.46(1m):
A victim of a violation of s. 940.302(2) or 948.051
has an affirmative defense for any offense committed
as a direct result of the violation of s. 940.302(2)
or 948.051 without regard to whether anyone was
prosecuted or convicted for the violation of s.
940.302(2) or 948.051.
Sections 940.302(2) and 948.051 prohibit, respectively, human
trafficking and child sex trafficking. Thus, under
§ 939.46(1m), a victim of human trafficking or child sex
trafficking has an affirmative defense "for any offense [the
victim] committed as a direct result" of the trafficking
offense, regardless of whether anyone is charged with or
convicted of trafficking.
¶8 Section 939.46(1m) does not define what it means for
an offense to be "committed as a direct result" of the
trafficking offense. Nor does the statute state expressly
whether it is a complete defense to first-degree intentional
homicide or if it is a mitigating defense——a defense that, if
successful, reduces a first-degree intentional homicide to a
second-degree one. We address those two disputed issues in
turn.
¶9 We do not decide, however, whether Kizer is entitled
to a jury instruction on this defense at trial as to some or all
of the charges against her. Both parties acknowledge that
6
No. 2020AP0192-CR
regardless of how we interpret the defense in § 939.46(1m), it
will be available to Kizer at trial only if she puts forth "some
evidence" to support its application. See State v. Johnson,
2021 WI 61, ¶17, 397 Wis. 2d 633, 961 N.W.2d 18. If she puts
forth such evidence, the burden will be on the State to prove
beyond a reasonable doubt that the defense does not apply. See
Moes v. State, 91 Wis. 2d 756, 765-66, 284 N.W.2d 66 (1979).
A
¶10 We first analyze what it means for an offense to be
"committed as a direct result of the violation" of the human-
trafficking statutes. See § 939.46(1m). The State's argument
comes in two parts. First, it offers several different
definitions of "direct result," including "the consequence of an
action without any intervening circumstances, or without
compromising or mitigating elements," "the primary, proximate,
immediate cause, marked by the absence of intervening agency,"
and "both actual and proximate cause and immediacy related to
trafficking." Based on those definitions, the State contends
that § 939.46(1m) applies only to an offense that is caused by
the underlying trafficking crime and not by "superseding or
intervening causes." The State then combines its definitions of
"direct result" with the next phrase in § 939.46(1m)——"direct
result of the violation" of the trafficking statutes, see id.
(emphasis added)——to conclude that the defense applies only to
offenses that are "part of or in furtherance of the underlying
trafficking violation." This conclusion is important because,
7
No. 2020AP0192-CR
in the State's view, the text of § 939.46(1m) does not create a
defense that applies solely because an individual is a victim of
human trafficking when she commits a crime. Rather, the defense
applies only to offenses committed by the trafficking victim
that are "part and parcel of the trafficking enterprise."
¶11 Kizer largely adopts the court of appeals' view that
an offense is committed as a direct result of the violation of
the human-trafficking statutes when it "arises relatively
immediately from the trafficking violation of which the victim
is a victim, is motivated primarily by the trafficking
violation, is a logical and reasonably foreseeable consequence
of that violation, and is not in significant part caused by
events, circumstances or considerations other than that
violation." Kizer, 398 Wis. 2d 697, ¶15. She suggests several
reasons why this interpretation is more consistent than the
State's with the text of § 939.46(1m).4 For one thing, she
argues that the State conflates "proximate cause" with "direct
result," despite the two being distinct and unrelated. For
4Kizer also argues that the State forfeited any objection
to the court of appeals' interpretation of § 939.46(1m) by
failing to raise that issue in its petition for review. We
acknowledge that the State took substantially different
positions in its briefing than it did in the petition for
review. For example, the State asserted in its petition that
§ 939.46(1m) could never apply to a charge of first-degree
intentional homicide but abandoned that position in its
briefing, acknowledging that the defense could apply to such a
charge, but "only in [the] rarest of cases." Nevertheless, and
even assuming the State forfeited these arguments, they raise
important issues that we choose to address. See State v.
McKellips, 2016 WI 51, ¶47, 369 Wis. 2d 437, 881 N.W.2d 258.
8
No. 2020AP0192-CR
another, she asserts that the State takes too narrow a view of
the necessary relationship between the trafficking crime and the
offense for which the victim claims the defense. Although
§ 939.46(1m) spells out the necessary connection——the offense
for which the victim claims the defense must be a direct result
of the trafficking offense——Kizer argues that the statute does
not require as close a connection as the State claims.
¶12 Neither the words "direct result" nor the full phrase
"committed as a direct result of the violation" of the human-
trafficking statutes are defined in § 939.46(1m).5 The lone
other criminal statute that uses the phrase "direct result" also
does not define it. See Wis. Stat. § 949.06(1) (explaining how
restitution awards should be computed for "economic losses
incurred as a direct result of an injury"). As a result, we
look to the common, ordinary meaning of the phrase. See Kalal,
271 Wis. 2d 633, ¶45.
5 Although other states have adopted statutes using somewhat
similar language, those statutes do not define "direct result"
either. See, e.g., Colo. Rev. Stat. § 18-7-201.3(1) (2021) ("A
person charged with prostitution . . . which offense as
committed as a direct result of being a victim of human
trafficking, may assert as an affirmative defense that he or she
is a victim of human trafficking."); Del. Code Ann. tit. 11,
§ 787(h) (2021-22) ("An individual charged with prostitution or
loitering committed as a direct result of being a victim of
human trafficking may assert as an affirmative defense that the
individual is a victim of human trafficking."); Ga. Code Ann.
§ 17-10-21(a)(1) (2021) ("A defendant convicted of an offense
and sentenced as a direct result of the defendant being the
victim of an offense of trafficking under Code Section 16-5-46
may petition the court imposing the sentence to vacate such
conviction.").
9
No. 2020AP0192-CR
¶13 Defining "direct result" in the abstract is relatively
straightforward as it is a common phrase with a familiar
meaning. "Result" means "to proceed or arise as a consequence,
effect, or conclusion."6 Result, Merriam-Webster's Collegiate
Dictionary (11th ed. 2009); Kizer, 398 Wis. 2d 697, ¶8 (noting
that the word "result" means "'to proceed, spring, or arise as a
consequence, effect, or conclusion: come out or have an issue.'"
(quoting Result, Webster's Third New Int'l Dictionary (1993)));
see also State v. McKellips, 2016 WI 51, ¶32, 369 Wis. 2d 437,
881 N.W.2d 258 (when a statute does not define terms we can rely
on dictionary definitions). But § 939.46(1m) does not apply to
just any result. As the court of appeals put it in this case,
the legislature "tightened up ['result'] by preceding it with
'direct.'" Kizer, 398 Wis. 2d 697, ¶8. "Direct" is also a
common word, with a well-understood meaning: "from the source
without interruption or diversion" and "without an intervening
agency or step." Direct, Merriam-Webster's Collegiate
Dictionary, supra; see also Kizer, 398 Wis. 2d 697, ¶8 (quoting
several relevant definitions of "direct" including "stemming
immediately from a source" and "marked by absence of an
intervening agency, instrumentality, or influence." (quoting
Direct, Webster's Third New Int'l Dictionary, supra; Direct,
6 The parties cite a handful of similar definitions. See
Result, Merriam-Webster Dictionary, https://www.merriam-webster.
com/dictionary/result ("[T]o proceed or arise as a consequence,
effect, or conclusion."); Result, American Heritage Dictionary
(2d ed. 1991) (defining "result" as "[t]he consequence of a
particular action, operation, or course; [an] outcome.").
10
No. 2020AP0192-CR
Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/direct)).7 A "direct result" is therefore
a consequence, effect, or conclusion that stems immediately from
its source.
¶14 Ordinary usage confirms that definition and also
reveals that a consequence can be the direct result of more than
one prior action. For instance, a car accident caused by a
distracted driver is the direct result of the driver's
inattention. So too is an accident in which a distracted driver
crashes into a car that ran a red light; but that accident is
also a direct result of the other driver running the red light.
Those two causes might be treated differently in apportioning
tort liability, see, e.g., Wis. Stat. § 895.045(1), but as a
matter of ordinary language, the accident is a direct result of
both. Ordinary usage also helps define the scope of which
consequences are the direct result of a prior action. An
ordinary person would never say that, in our car-accident
example, the accident was a direct result of the driver having
been born, even though that is a necessary precursor to the
accident. Rather, the ordinary meaning of "direct result"
7 As with "result," the parties cite several additional,
mostly similar definitions of "direct." See
Direct, Merriam-Webster Dictionary, https://www.merriam-webster.
com/dictionary/direct ("[S]temming immediately from a source,"
"marked by absence of an intervening agency, instrumentality, or
influence," and "characterized by close logical, causal, or
consequential relationship."); Direct, Cambridge Dictionary, htt
ps://dictionary.cambridge.org/us/dictionary/english/direct
("[W]ithout anyone or anything else being involved or
between.").
11
No. 2020AP0192-CR
connotes a tighter logical and causal relationship between
events than simply the word "result."
¶15 Based on the above dictionary definitions of "direct"
and "result," the ordinary usage of the phrase "direct result,"
and the language of § 939.46(1m), we conclude that an offense is
"committed as a direct result of the violation" of the human-
trafficking statutes if there is a logical, causal connection
between the offense and the trafficking such that the offense is
not the result, in significant part, of other events,
circumstances, or considerations apart from the trafficking
violation. Additionally, we emphasize that the offense need not
be a foreseeable result of the trafficking violation and need
not proceed "relatively immediately" from the trafficking
violation. Kizer, 398 Wis. 2d 697, ¶15. In this respect, we
disagree with the court of appeals' decision, which interpreted
§ 939.46(1m) to apply when an offense "arises relatively
immediately from" and is a "logical and reasonably foreseeable
consequence" of the trafficking violation.8 See id. We see no
basis in the language of the statute for imposing such
categorical rules, which would run counter to the ordinary
meaning of the phrase "direct result" and the nature of the
8The court of appeals also described an offense "committed
as a direct result of the violation" of the trafficking statutes
as one that is "motivated primarily by the trafficking
violation." See Kizer, 398 Wis. 2d 697, ¶15. In our view, this
notion——to the extent it is consistent with the language of
§ 939.46(1m)——is already incorporated in our reading of the
statute.
12
No. 2020AP0192-CR
underlying trafficking crime. Unlike many crimes, which occur
at discrete points in time, human trafficking can trap victims
in a cycle of seemingly inescapable abuse that can continue for
months or even years. See, e.g., Wis. Dep't of Justice, 2019
Law Enforcement Assessment of Sex Trafficking in Wisconsin 17-18
(2019). For that reason, even an offense that is unforeseeable
or that does not occur immediately after a trafficking offense
is committed can be a direct result of the trafficking offense,
so long as there is still the necessary logical connection
between the offense and the trafficking.
¶16 Although the "direct result" language in § 939.46(1m)
contains a causal component, we reject the State's arguments
about proximate cause. The legislature has already specified
that a different kind of causal relationship is required
here: a direct result. In doing so, the legislature did not
use or otherwise incorporate technical terms like proximate
cause, which has a particular meaning in a distinct doctrinal
context. See Fandrey ex rel. Connell v. Am. Fam. Mut. Ins. Co.,
2004 WI 62, ¶15, 272 Wis. 2d 46, 680 N.W.2d 345 (describing
"'public policy factors,' formerly referred to as 'proximate
cause,'" and their application in the negligence context).
¶17 For similar reasons, we also reject the State's narrow
view of causation more generally. The State argues that the
defense in § 939.46(1m) is unavailable whenever an "intervening
cause[] or agency" is involved. But an offense may be a direct
result of a trafficking offense even if there are other causes
at play, so long as the offense is not the result, in
13
No. 2020AP0192-CR
significant part, of other events, circumstances, or
considerations apart from the trafficking violation. This is in
keeping with both the ordinary understanding of what a direct
result is and how we have interpreted that phrase in other
statutes. For example, in Waller v. American Transmission Co.,
2013 WI 77, 350 Wis. 2d 242, 833 N.W.2d 764, we analyzed Wis.
Stat. § 32.19(2)(e)1., which states that a person is displaced
by a public project if they move "[a]s a direct result of a
written notice" of the government's intent to acquire or its
actual acquisition of the person's real property.
§ 32.19(2)(e)1. (emphasis added). We concluded that the "direct
result" language required "a factual inquiry into the cause of
the person's move," and concluded that property owners could
move as a direct result of an offer to acquire property even if
"they chose to move voluntarily and were not 'forced' to move."
Waller, 350 Wis. 2d 242, ¶¶114, 116. Section 939.46(1m)
likewise requires a factual inquiry into whether there is a
logical, causal connection between the offense and the
trafficking such that the offense is not the result, in
significant part, of other events, circumstances, or
considerations apart from the trafficking violation. It does
not require, however, that the victim's offense be the result of
only the trafficking offense, or that the victim be forced to
commit the offense (as the State puts it) as "part of or in
furtherance of the underlying trafficking violation."
¶18 This conclusion is also consistent with the only
published decision from another state court interpreting similar
14
No. 2020AP0192-CR
statutory language. See In re D.C., 60 Cal. App. 5th 915 (2021)
(interpreting Cal. Penal Code § 236.23(a), which provides an
affirmative defense to certain crimes if the defendant
establishes that they were "coerced to commit the offense as a
direct result of being a human trafficking victim at the time of
the offense and had a reasonable fear of harm"). In that case, In
re D.C., the defendant was a victim of human trafficking charged
with carrying a concealed knife. Id. at 918. The defendant
said that he carried the knife to protect himself against
abduction by his trafficker——something that had happened before.
Id. at 918-19. The California Court of Appeal concluded that
the defendant's conduct could fall within the affirmative
defense because someone could be coerced to commit an offense as
a direct result of being a trafficking victim even if they did
not "act at the behest of the trafficker" and the trafficker was
unaware "that the victim was planning or had committed a crime."
Id. at 920. The similar language in Wisconsin's statute
supports a similar conclusion. "[C]ommitted as a direct result
of the violation" of the human-trafficking statutes in
§ 939.46(1m) does not require that the trafficker be aware of
the offense, or that it occur at the trafficker's behest in
furtherance of the trafficking violation. It simply requires
that the offense occur as a direct result of the violation of
the trafficking statutes.
¶19 We agree with the State that the application of
§ 939.46(1m) requires more than the fact that a crime was
committed by a trafficking victim, but our interpretation
15
No. 2020AP0192-CR
already addresses that concern. One necessary element of the
defense is, of course, that the defendant be "[a] victim of a
violation of" the human-trafficking statutes. See § 939.46(1m).
But § 939.46(1m) also requires that the offense be committed as
a direct result of the violation of the trafficking statutes.
And as we have interpreted that requirement, it is not enough to
say simply that because the defendant is a victim of human
trafficking, any offense they commit subsequently must be a
direct result of the trafficking. The offense must bear a
logical, causal connection to the underlying trafficking
offense; it must be a direct result of the trafficking.
Moreover, the same threshold applies to § 939.46(1m) as to other
affirmative defenses——the defendant must produce some evidence
on which a reasonable jury could find that the defense applies.
See Johnson, 397 Wis. 2d 633, ¶17. Thus, our interpretation
does not create the kind of blanket immunity for victims of
human trafficking that the State fears.
¶20 In conclusion, we hold that an offense is "committed
as a direct result of the violation" of the human-trafficking
statutes if there is a logical, causal connection between the
offense and the trafficking such that the offense is not the
result, in significant part, of other events, circumstances, or
considerations apart from the trafficking violation.
B
¶21 The remaining issue is whether § 939.46(1m) creates a
complete defense to a charge of first-degree intentional
16
No. 2020AP0192-CR
homicide or merely mitigates a conviction for first-degree
intentional homicide to one for second-degree homicide.
¶22 The State's argument that the defense is mitigating
rests on its reading of two related statutes, Wis. Stat.
§§ 939.45(1) and 940.01(2)(d). Section 939.45 states that
"[t]he fact that the actor's conduct is privileged, although
otherwise criminal, is a defense to prosecution for any crime
based on that conduct," including "[w]hen the actor's conduct
occurs under circumstances of coercion . . . so as to be
privileged under s. 939.46." § 939.45(1). Because § 939.46(1m)
is part of § 939.46, the State concludes that it is one of the
privileges referenced in § 939.45(1). The State then points to
§ 940.01(2), which lists the affirmative defenses that mitigate
first-degree intentional homicide "to 2nd-degree intentional
homicide." Among those mitigating defenses are the privileges
listed in § 939.45(1). See § 940.01(2)(d) (stating that first-
degree intentional homicide is mitigated to second-degree
homicide when the "[d]eath was caused in the exercise of a
privilege under s. 939.45(1)"). Thus, the State concludes that
the § 939.46(1m) defense must be mitigating because it appears
in the coercion statute, § 939.46.
¶23 Kizer, on the other hand, argues that § 939.46(1m) is
a complete defense, in part because the history of the coercion
statute does not support the State's conclusion. She points out
that §§ 939.45 and 939.46 were adopted at the same time in 1955
and that at that time, § 939.46 contained only two subsections——
subsec. (1) codified the common law coercion defense, while
17
No. 2020AP0192-CR
subsec. (2) made clear that the same standard for coercion
applied when "a married woman" claimed that "the alleged crime
was committed by command of her husband." See Ch. 696, § 1,
Laws of 1955; see also Wis. Stat. § 939.46(1)-(2) (1955-56).
Kizer explains that § 939.46(2) (1955-56) simply placed a
limitation on coercion defenses; it was not a defense in its own
right, as § 939.46(1m) is. Thus, when it was adopted, the
"circumstances of coercion" referred to in § 939.45(1) (1955-56)
could have meant only the general coercion defense in
§ 939.46(1) (1955-56). And because § 939.46(1m) was not adopted
until more than 50 years later, see 2007 Wis. Act 116, § 30,
Kizer concludes that § 939.46(1m) is not one of the
"circumstances of coercion" referenced in § 939.45(1).
¶24 A weakness in Kizer's argument is that Wis. Stat.
§ 990.001(5)(b) requires us to read statutory cross-references
like those in § 939.45 as referring to all subsections currently
in effect. "When a decimal-numbered statute of this state,"
like § 939.45(1), "contains a reference to another decimal-
numbered statute of this state," like § 939.46, "the reference
is to the current text of the statute referenced, and includes
any change that has been inserted into . . . the referenced
statute since the reference was first incorporated into the
statute." § 990.001(5)(b). Thus, the fact that § 939.46(1m)
did not exist when § 939.45(1) was enacted does not mean that
§ 939.45(1) does not refer to § 939.46(1m) now.
¶25 That said, the text of § 939.45(1) is not particularly
clear, since it refers not to all of § 939.46 but to
18
No. 2020AP0192-CR
"circumstances of coercion . . . under s. 939.46." Despite
§ 939.46 being titled "coercion," not every subsection of the
statute is a coercion defense. Indeed, subsec. (2) is a
limitation on coercion defenses, and subsec. (3) provides a non-
coercion affirmative defense for so-called "straw purchases" of
firearms. Not to mention that "titles . . . are not part of the
statutes," § 990.001(6). Thus, not all of the conduct addressed
in § 939.46 is necessarily covered by § 939.45(1)'s reference to
"circumstances of coercion . . . under § 939.46." And that
means that not all conduct in § 939.46 would mitigate a first-
degree intentional homicide charge to a second-degree one. At
least subsecs. (2) and (3) would not, and it is therefore
unclear whether the same is true of subsec. (1m) as well.
¶26 Kizer's stronger argument is that the absence of any
explicit mitigation language in § 939.46(1m) means that the
statute creates a complete defense to first-degree intentional
homicide. She points out that, unlike § 939.46(1m), many other
statutory defenses expressly state that they mitigate a first-
degree intentional homicide to a second-degree intentional
homicide. See, e.g., Wis. Stat. § 939.47 (necessity is a
complete defense "except that if the prosecution is for first-
degree intentional homicide, the degree of the crime is reduced
to 2nd-degree intentional homicide"); § 939.44(2) ("Adequate
provocation is an affirmative defense only to first-degree
intentional homicide and mitigates that offense to 2nd-degree
intentional homicide."); § 940.01(2)(a)-(c) (specifying that
adequate provocation, imperfect self-defense, and prevention of
19
No. 2020AP0192-CR
a felony "mitigate the offense" of first-degree intentional
homicide "to 2nd-degree intentional homicide"). The absence of
similar language in § 939.46(1m) is notable because the only
other statutory defense that could apply to a first-degree
intentional homicide and that also contains no such mitigating
language is perfect self defense, which is a complete defense to
first-degree intentional homicide. See § 939.48(1). This
context suggests that a defense is complete as to first-degree
intentional homicide unless the statute contains express
language regarding mitigation. See Kalal, 271 Wis. 2d 633, ¶46
(we interpret statutory language in context, "in relation to the
language of surrounding or closely-related statutes."). And
that suggestion is particularly compelling here because the
subsection immediately preceding § 939.46(1m) states expressly
that a general coercion defense, if successful, reduces a
"first-degree intentional homicide[] . . . to 2nd-degree
intentional homicide." See § 939.46(1); see also Augsburger v.
Homestead Mut. Ins. Co., 2014 WI 133, ¶17, 359 Wis. 2d 385, 856
N.W.2d 874.
¶27 The State and Kizer's competing interpretations
demonstrate that § 939.46(1m) is ambiguous. It is "capable of
being understood by reasonably well-informed persons in [at
least] two . . . senses": either as a complete defense to
first-degree intentional homicide or as a defense that mitigates
a first-degree intentional homicide to a second-degree one. See
Kalal, 271 Wis. 2d 633, ¶47. When an ambiguity exists in a
criminal statute, we apply the rule of lenity to resolve the
20
No. 2020AP0192-CR
ambiguity in the defendant's favor unless the legislative
history clarifies the statute's meaning.9 See State v. Luedtke,
2015 WI 42, ¶73, 362 Wis. 2d 1, 863 N.W.2d 592; State v. Cole,
2003 WI 59, ¶67, 262 Wis. 2d 167, 663 N.W.2d 700. We do so "to
avoid usurping the function of the legislature" and to ensure
that statutes "provide the public with fair notice of prohibited
conduct."10 See State v. Quintana, 2008 WI 33, ¶66, 308
Wis. 2d 615, 748 N.W.2d 447.
9 We recognize that there is some variation across our cases
and the federal courts as to when the rule of lenity applies.
See, e.g., State v. Guarnero, 2015 WI 72, ¶27, 363 Wis. 2d 857,
867 N.W.2d 400 (stating that the rule applies when there is a
"'grievous ambiguity' or uncertainty" in a statute's meaning
after "considering statutory language, context, structure and
purpose" (quoting United States v. Castleman, 572 U.S. 157, 173
(2014))); Moskal v. United States, 498 U.S. 103, 108 (1990)
("[W]e have always reserved lenity for those situations in which
a reasonable doubt persists about a statute's intended scope
even after resort to 'the language and structure, legislative
history, and motivating policies' of the statute." (emphasis in
original) (quoted source omitted)); see also Shon Hopwood,
Restoring the Historical Rule of Lenity as a Canon, 95 N.Y.U. L.
Rev. 918, 924-31 (2020) (reviewing the various historical and
contemporary formulations of the rule of lenity). In this case,
though, none of those variations would alter our conclusion.
10We acknowledge that the use of legislative history to
clarify an ambiguous criminal statute may be at odds with the
fair-notice purpose of the rule of lenity. Nevertheless, since
at least the 1970s, our cases——with the exception of Guarnero,
discussed previously——have applied the rule of lenity only after
concluding that the legislative history did not clear up an
ambiguity. See, e.g., State v. Wilson, 77 Wis. 2d 15, 26-27,
252 N.W.2d 64 (1977); see also State v. Setagord, 211
Wis. 2d 397, 415, 565 N.W.2d 506 (1997). And Guarnero did not
overrule those cases. See 363 Wis. 2d 857, ¶¶26-27. In any
case, revisiting these precedents is not necessary to resolve
this case, since, as discussed below, the legislative history
does not clarify the meaning of § 939.46(1m).
21
No. 2020AP0192-CR
¶28 The legislative history of § 939.46(1m) does not
answer whether the statute creates a complete or mitigating
defense to first-degree intentional homicide. Indeed, there is
no legislative history at all on the mitigation question. The
drafting file for the Senate bill contains both a Legislative
Reference Bureau memo and a "model state anti-trafficking
criminal statute," but neither address whether § 939.46(1m) is a
mitigating or complete defense. In addition, the parties have
not pointed us to any other extrinsic source that sheds light on
the question, and we have not found any either.11
¶29 Accordingly, we apply the rule of lenity, and conclude
that § 939.46(1m) is a complete defense to a charge of first-
degree intentional homicide. See Cole, 262 Wis. 2d 167, ¶68.
11 The dissent fails to explain why common law coercion
somehow helps resolve the issue. For one thing, common law
coercion was not a defense to homicide at all; it was neither a
mitigating nor a complete defense. See, e.g., Joshua Dressler,
Exegesis of the Law of Duress: Justifying the Excuse and
Searching for its Proper Limits, 62 S. Cal. L. Rev. 1331, 1370
(1989). Given that, it is not clear why the common law's
treatment of coercion should somehow mean that § 939.46(1m) must
be a mitigating defense. The only reason the general coercion
defense in § 939.46(1) is mitigating is because the legislature
broke with the common law rule. See §§ 939.46(1), 939.45(1).
Moreover, the legislature codified § 939.46(1m) separately from
the general coercion defense in § 939.46(1) and without
referring to "coercion" at all and without specifying that it is
a mitigating defense to first-degree intentional homicide.
Indeed, as the dissent points out, the legislature specifically
rejected proposed model legislation referring to "coercion" when
it adopted the statute. See dissent, ¶75. For these reasons,
common law coercion is irrelevant to our analysis.
22
No. 2020AP0192-CR
IV
¶30 We hold that an offense is "committed as a direct
result" of a violation of the human-trafficking statutes if
there is a logical, causal connection between the offense and
the trafficking such that the offense is not the result, in
significant part, of other events, circumstances, or
considerations apart from the trafficking violation. We further
hold that § 939.46(1m) is a complete defense to a charge of
first-degree intentional homicide. Accordingly, we affirm the
decision of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
23
No. 2020AP192-CR.rgb
¶31 REBECCA GRASSL BRADLEY, J. (concurring). "[A]ny
reasonable doubt about the application of a penal law must be
resolved in favor of liberty." Wooden v. United States, 595
U.S. __, 142 S. Ct. 1063, 1081 (2022) (Gorsuch, J., concurring).
As Justice Patience Drake Roggensack's well-reasoned dissent
demonstrates, reasonable minds may differ on whether Wis. Stat.
§ 939.46(1m) provides a complete defense for trafficking victims
charged with first-degree intentional homicide or merely
mitigates a conviction to second-degree intentional homicide.
Ascertaining the meaning of the Wisconsin Statutes to resolve
this issue requires deciphering a labyrinth of cross-referenced
provisions, an undertaking the Wisconsin Supreme Court is
typically well-equipped to perform. In this case, however, that
exercise produced analytical disagreement, generating two
reasonable constructions of governing statutes. I join the
majority/lead opinion (in part)1 rather than the dissent because
the rule of lenity demands judgment in the defendant's favor.
Id.¶32 I depart from the dissenting opinion because making
sense of the applicable statutes on the issue presented
befuddles even supreme court justices. When it comes to laws
imposing criminal punishment, the text of the law must convey
the consequences of criminal conduct "in terms an ordinary
person can understand." Id. at 1082. If "uncertainty exists"
because an ordinary person cannot unravel the web of complexity
I do not join the majority/lead opinion's discussion of
1
the rule of lenity, paragraphs 27-29 and accompanying footnotes.
1
No. 2020AP192-CR.rgb
created by the legislature, "the law gives way to liberty." Id.
If supreme court justices are unable to definitively discern the
meaning of statutes, how could an ordinary person? "[A] fair
system of laws requires precision in the definition of offenses
and punishments. The less the courts insist on precision, the
less the legislatures will take the trouble to provide it."
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 301 (2012).
¶33 I depart from the majority/lead opinion because it
elevates legislative history over a rule of statutory
construction predating the founding. The majority/lead opinion
says, "[w]hen an ambiguity exists in a criminal statute, we
apply the rule of lenity to resolve the ambiguity in the
defendant's favor unless the legislative history clarifies the
statute's meaning." Majority/Lead op., ¶27 (citing State v.
Luedtke, 2015 WI 42, ¶73, 362 Wis. 2d 1, 863 N.W.2d 592; State
v. Cole, 2003 WI 59, ¶13, 262 Wis. 2d 167, 663 N.W.2d 700).
Consulting legislative history before applying the rule of
lenity is in error. "For the freedom of our constitution will
not permit, that in criminal cases a power should be lodged in
any judge, to construe the law otherwise than according to the
letter." Introduction, William Blackstone, Commentaries *92.
We do not "possess the authority to punish individuals under
ambiguous laws in light of our own perceptions about some piece
of legislative history or the statute's purpose." Wooden, 142
S. Ct. at 1085. If "the traditional tools of statutory
interpretation yield no clear answer, the judge's next step
2
No. 2020AP192-CR.rgb
isn't to legislative history . . . . The next step is to
lenity." Id. at 1085-86; see also Ratzlaf v. United States, 510
U.S. 135, 147–48 (1994) ("There are, we recognize, contrary
indications in the statute's legislative history. But we do not
resort to legislative history to cloud a statutory text that is
clear. Moreover, were we to find § 5322(a)'s 'willfulness'
requirement ambiguous as applied to § 5324, we would resolve any
doubt in favor of the defendant." (citations omitted)).
¶34 The majority/lead opinion cites outdated cases in
support of its consultation of legislative history.2 In State v.
Luedtke, 362 Wis. 2d 1, ¶73, this court declined to apply the
rule of lenity because it deemed the statute under consideration
unambiguous. In a single paragraph disposing of the issue, the
court merely quoted State v. Cole for the proposition that the
rule of lenity applies only if the statute is ambiguous and the
court is "unable to clarify the intent of the legislature by
resort to legislative history." Luedtke, 362 Wis. 2d 1, ¶73
(quoting Cole, 262 Wis. 2d 167, ¶67). Cole is a pre-Kalal case
2 The majority/lead opinion acknowledges "that the use of
legislative history to clarify an ambiguous criminal statute may
be at odds with the fair-notice purpose of the rule of lenity";
however, it declines to relieve this tension. Majority/Lead
op., ¶27 n.10. "[I]t is this court's function to develop and
clarify the law." State ex rel. Wis. Senate v. Thompson, 144
Wis. 2d 429, 436, 424 N.W.2d 385 (1988); see also Cook v. Cook,
208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (noting this court
has been "designated by the constitution and the legislature as
a law declaring court" (quoting State ex rel. La Crosse Trib.
v. Cir. Ct. for La Crosse Cnty., 115 Wis. 2d 220, 229–30, 340
N.W.2d 460 (1983))). In fulfilling that function, this court
has a duty to independently research, analyze, and interpret the
law on behalf of the nearly 6 million people of Wisconsin.
3
No. 2020AP192-CR.rgb
reflecting an approach to statutory construction focused on what
the legislature "intended." See Cole, 262 Wis. 2d 167, ¶13
("The principal objective of statutory interpretation is to
ascertain and give effect to the intent of the legislature.").
In Kalal, this court rejected that approach and joined the
judicial mainstream in adopting a method of statutory
interpretation focused on the meaning of the text. State ex
rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271
Wis. 2d 633, 681 N.W.2d 110.
¶35 In at least one post-Kalal case, the court analyzed
the applicability of the rule of lenity without any mention of
legislative history. State v. Guarnero, 2015 WI 72, ¶27, 363
Wis. 2d 857, 867 N.W.2d 400. Although the majority/lead opinion
acknowledges Guarnero, it effectively declares it an outlier.
More accurately, Guarnero conformed this court's jurisprudence
on lenity to the prevailing method of statutory interpretation,
in which legislative history plays no part.
¶36 "Regardless, stare decisis is a judicially-created
policy and 'not an inexorable command;' for this reason, we will
overturn precedent if it is objectively wrong." Friends of
Frame Park, U.A. v. of Waukesha, 2022 WI __, __ Wis. 2d __,
¶64, __ N.W.2d __ (Rebecca Grassl Bradley, J., concurring)
(quoting Johnson Controls, Inc. v. Emps. Ins. of Wausau, 2003 WI
108, ¶97, 264 Wis. 2d 60, 665 N.W.2d 257). "Historically, the
judiciary has prioritized declaring the law correctly over
perpetuating errors in judgment in the name of stability in the
law." Id. We should do so in this case.
4
No. 2020AP192-CR.rgb
¶37 "Changes or developments in the law have undermined
the rationale behind" consulting legislative history to resolve
statutory ambiguity before applying lenity. See State v.
Roberson, 2019 WI 102, ¶50, 389 Wis. 2d 190, 935 N.W.2d 813(quoting Bartholomew v. Wis. Patients Comp. Fund & Compcare
Health Servs. Ins. Corp., 2006 WI 91, ¶33, 293 Wis. 2d 38, 717
N.W.2d 216). In Kalal, this court rejected intentionalism.
"Kalal was a 'watershed decision in the modern history of the
Wisconsin Supreme Court' and is Wisconsin's 'most cited case of
modern times.'" Clean Wis., Inc. v. Wis. Dep't of Nat. Res.,
2021 WI 71, ¶86, 398 Wis. 2d 386, 961 N.W.2d 346 (Rebecca Grassl
Bradley, J., dissenting) (quoting Daniel R. Suhr, Interpreting
Wisconsin Statutes, 100 Marq. L. Rev. 969, 969–70 (2017)).
"'Kalal transformed statutory interpretation in Wisconsin' and
'shift[ed] state courts from a vaguely intentionalist
interpretive method' to a 'uniform method' focusing upon the
plain meaning of the words actually enacted into law." Id.(quoting Suhr, Interpreting Wisconsin Statutes, at 970)
(modification in the original).
¶38 As Kalal recognized, "[i]t is the enacted law, not the
unenacted intent, that is binding on the public." Kalal, 271
Wis. 2d 633, ¶44. This is the same premise underlying the rule
of lenity. As the United States Supreme Court has acknowledged,
"it is not likely that a criminal will carefully consider the
text of the law before he murders[.]" McBoyle v. United States,
283 U.S. 25, 27 (1931). Nevertheless, a fair justice system
requires "that a fair warning should be given to the world in
5
No. 2020AP192-CR.rgb
language that the common world will understand, of what the law
intends to do if a certain line is passed." Id. While the
notion that statutes "give adequate notice to the citizen is
something of a fiction, . . . albeit one required in any system
of law," this "necessary fiction descends to needless farce when
the public is charged even with knowledge of Committee Reports."3
United States v. R.L.C., 503 U.S. 291, 309 (1992) (Scalia, J.,
concurring). The rule of law cannot countenance any
"justification for extending the 'necessary fiction' that
citizens know the law . . . to such extralegal materials." Id.
at 312 (Thomas, J., concurring). Plainly, "defendants cannot be
presumed to be on notice of information present only in the
legislative record[.]" Sarah Newland, Note, The Mercy of
Scalia: Statutory Construction and the Rule of Lenity, 29 Harv.
C.R.-C.L. L. Rev. 197, 213 (1994). Examining legislative
history to resolve an ambiguity in a criminal statute is
incompatible with Kalal and the purpose of the rule of lenity.
3 Often, many members of the legislature are not even
familiar with a bill's historical materials:
The notion that you can pluck statements from a couple
of legislators or even from a committee report, which
is usually written by some teenagers, and . . . very
often not even read by the committee, much less read
by the whole House, much less less read by the other
House, . . . [and presume the statements] somehow
[are] reflective of the intent of the whole Congress
and of the President . . . it truly is the last
surviving fiction in American law.
Clean Wis., Inc. v. Wis. Dep't of Nat. Res., 2021 WI 71, ¶90,
398 Wis. 2d 386, 961 N.W.2d 346 (Rebecca Grassl Bradley, J.,
dissenting) (quoting Hoover Inst., Uncommon Knowledge with
Justice Antonin Scalia, YouTube, at 17:40 (Oct. 30, 2012),
https://www.youtube.com/watch?v=DaoLMW5AF4Y).
6
No. 2020AP192-CR.rgb
¶39 Although legislative history may play a limited role
in confirming a plain meaning statutory interpretation, "it is
not consistent with the rule of lenity to construe a textually
ambiguous penal statute against a criminal defendant on the
basis of legislative history." R.L.C., 503 U.S. at 307 (Scalia,
J., concurring); see also Crandon v. United States, 494
U.S. 152, 160 (1990) ("Because construction of a criminal
statute must be guided by the need for fair warning, it is rare
that legislative history or statutory policies will support a
construction of a statute broader than that clearly warranted by
the text."). If the rule of lenity requires legislative clarity
in defining crime and punishment, nothing in the legislative
history may "cause[] the criminal law to be stricter than the
text of the law displays." R.L.C., 503 U.S. at 308. While we
presume the people's familiarity with the law,4 we do not expect
citizens to consult legislative history in order to ensure their
conduct conforms with the rules prescribed by the legislature.
¶40 Applying the rule of lenity upon determining a
criminal statute is ambiguous reflects a proper exercise of
judicial restraint, reserving the amendment of unclear statutes
for the legislature. Newland, The Mercy of Scalia, at 203. For
courts to instead explore legislative history to divine what the
4"[I]gnorance of the law is no excuse in any country. If
it were, the laws would lose their effect, because it can be
always pretended." From Thomas Jefferson to André Limozin, 22
December 1787, Founders Online, National Archives,
https://founders.archives.gov/documents/Jefferson/01-12-02-0460.
[Original source: The Papers of Thomas Jefferson, vol. 12, 7
August 1787 – 31 March 1788, ed. Julian P. Boyd. Princeton:
Princeton University Press, 1955, pp. 450–51.]
7
No. 2020AP192-CR.rgb
legislator "intended" "risk[s] the possibility that judges
rather than legislators will control the power to define crimes
and their punishments." Wooden, 142 S. Ct. at 1086.
"[L]egislative history can never provide assurance against"
courts defining the criminal law rather than the legislature.
R.L.C., 503 U.S. at 309. Limiting judicial review to declaring
what the law says rather than what legislators may have
intended, but did not write, is fundamental to the separation of
powers. "To determine that a case is within the intention of a
statute, its language must authorise us to say so." United
States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 96 (1820).
¶41 Legislative history crept into judicial opinions only
in the 20th century; until then, "[f]rom the beginnings of the
republic, American law followed what is known as the 'no-
recourse doctrine'——that in the interpretation of a text, no
recourse may be had to legislative history." Scalia & Garner,
Reading Law, at 369. The defects and dangers of using
legislative history as a tool for interpretation have been well
documented. See, e.g., id. at 369-90. In contrast, the rule of
lenity "antedates both state and federal constitutions," id. at
297, and "became a widely recognized rule of statutory
construction in the Republic's early years." Wooden, 142 S. Ct.
at 1082. In 1820, Chief Justice John Marshall explained its
origins: "The rule that penal laws are to be construed
strictly, is perhaps not much less old than construction itself.
It is founded on the tenderness of the law for the rights of
individuals; and on the plain principle that the power of
8
No. 2020AP192-CR.rgb
punishment is vested in the legislative, not in the judicial
department. It is the legislature, not the Court, which is to
define a crime, and ordain its punishment." Wiltberger, 18 U.S.
at 95.
¶42 The rule of lenity does not apply every time a court
must unravel complex statutes; if it did, the court would adopt
any plausible statutory interpretation favoring the defendant's
case, in every case. Although the United States Supreme Court
has framed the threshold for its application differently in
different cases, the rule of lenity should apply only if, after
exhausting "all legitimate tools of interpretation . . . , 'a
reasonable doubt persists.'" Scalia & Garner, Reading Law, at
299 (quoting Moskal v. United States, 498 U.S. 103, 108 (1990)
(per Marshall, J.)); see also Wooden, 142 S. Ct. at 1081. In
this case, notwithstanding earnest application of the canons of
statutory construction, the members of this court reach
different interpretations, producing reasonable doubt as to
which reading is correct. The issue of whether Wis. Stat.
§ 939.46(1m) provides a complete defense for trafficking victims
charged with first-degree intentional homicide or merely
mitigates a conviction to second-degree intentional homicide "is
eminently debatable——and that is enough, under the rule of
lenity, to require finding for" the defendant in this case.
Smith v. United States, 508 U.S. 223, 246 (1993) (Scalia, J.,
dissenting).
¶43 Because "the majority of statutes are clear in their
prescriptions," the United States Supreme Court "often rejects
9
No. 2020AP192-CR.rgb
the use of the rule of lenity based on statutory clarity."
Newland, The Mercy of Scalia, at 211 n.67. This is true
regarding the Wisconsin statutes as well. The rule of lenity
may be rarely used,5 but reasonable doubt over the meaning of
Wis. Stat. § 939.46(1m) as applied in this case compels a
resolution in the defendant's favor.
The rare application of the rule of lenity means our
5
opportunities for review will come infrequently, yet another
reason the court should ensure it declares the law correctly in
this case.
10
No. 2020AP192-CR.pdr
¶44 PATIENCE DRAKE ROGGENSACK, J. (dissenting). In
accord with the common law principle that coercion is not a
complete defense to first-degree intentional homicide as well as
the text and surrounding context of Wis. Stat. § 939.46(1m), I
conclude that § 939.46(1m)'s trafficking defense, which is
grounded in coercion, is not a complete defense to first-degree
intentional homicide. Rather, it comes within § 939.46(1) and
has the potential to mitigate the charge of first-degree
intentional homicide to second-degree intentional homicide. The
majority/lead opinion errs because its interpretation of
§ 939.46(1m) abrogates the common law by making coercion a
complete defense to first-degree intentional homicide and
ignoring the context in which the legislature placed
§ 939.46(1m). Accordingly, I respectfully dissent.
I. BACKGROUND1
¶45 Chrystul Kizer was charged 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. These charges stemmed from Kizer's alleged murder
of a man who allegedly had been sex trafficking her. According
to the criminal complaint, Kizer travelled from Milwaukee to
Kenosha where she shot her trafficker. Following the shooting,
Kizer started a fire at the man's home and drove off in his car.
¶46 At pre-trial, Kizer and her counsel sought to rely on
Wis. Stat. § 939.46(1m), which grants victims of human
The majority/lead opinion ably sets forth relevant facts;
1
therefore, I provide only additional facts necessary to
understand my opinion that follows.
1
No. 2020AP192-CR.pdr
trafficking "an affirmative defense for any offense committed as
a direct result" of the trafficking. See § 939.46(1m). After
briefing and argument on this issue, the circuit court concluded
that Kizer could not rely on the defense. Kizer moved for
interlocutory appeal, which motion the court of appeals granted.
Following further argument and briefing, the court of appeals
reversed the circuit court. As part of its reversal, the court
of appeals concluded that § 939.46(1m) is a complete defense to
first-degree intentional homicide. We granted the State's
petition for review.
II. DISCUSSION
A. Standard of Review
¶47 "[T]he purpose of statutory interpretation is to
determine what the statute means so that it may be given its
full, proper, and intended effect." State ex rel. Kalal v. Cir.
Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d
110. Statutory interpretation begins with the language of the
statute. If the meaning of the words are plain and unambiguous,
the court's inquiry ends and there is no need to consult
extrinsic sources of interpretation, such as legislative
history. Id., ¶¶45, 46.
¶48 In addition to the plain words of the text, "[c]ontext
is important to meaning. So, too, is the structure of the
statute in which the operative language appears." Id., ¶46.
Therefore, rather than in isolation, "statutory language is
interpreted in the context in which it is used; . . . in
relation to the language of surrounding or closely-related
2
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statutes; . . . to avoid absurd or unreasonable results;
. . . [and] read where possible to give reasonable effect to
every word, in order to avoid surplusage." Id. "Statutes are
closely related when they are in the same chapter, reference one
another, or use similar terms." State v. Reyes Fuerte, 2017 WI
104, ¶27, 378 Wis. 2d 504, 904 N.W.2d 773 (citing City of
Janesville v. CC Midwest, Inc., 2007 WI 93, ¶24, 302 Wis. 2d
599, 734 N.W.2d 428).
¶49 It is consistent with the plain-meaning rule "to
consider the intrinsic context in which statutory language is
used; a plain-meaning interpretation cannot contravene a
textually or contextually manifest statutory purpose." Kalal,
271 Wis. 2d 633, ¶49. However, in "construing or interpreting a
statute the court is not at liberty to disregard the plain,
clear words of the statute." Id., ¶46. Nor are courts
permitted to read words into the statute that the legislature
did not insert. Dawson v. Town of Jackson, 2011 WI 77, ¶42, 336
Wis. 2d 318, 801 N.W.2d 316.
B. The Majority/lead Opinion
¶50 The State's argument that Wis. Stat. § 939.46(1m)
mitigates first-degree intentional homicide to second degree,
rather than providing a complete defense, focuses on following
the links among statutory cross references.2 Following this
chain, the State argues that the trafficking defense is limited
by the provision of Wis. Stat. § 940.01(2)(d), which provides
that the listed affirmative defenses mitigate a first-degree
2 See Section II.D.
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intentional homicide charge to a second-degree charge. The
majority/lead ignores the effect of the common law and disagrees
with the State's contention. The majority/lead asserts that the
absence of explicit mitigation language in § 939.46(1m) creates
a complete defense to first-degree intentional homicide.3
¶51 In arriving at this conclusion, the majority/lead
compares Wis. Stat. § 939.46(1m) with other statutory defenses
that explicitly state that they mitigate the charge to second-
degree intentional homicide.4 Ultimately, the majority/lead
opinion declares that this "suggests that a defense is complete
as to first-degree intentional homicide unless the statute
contains express language regarding mitigation."5
¶52 Yet, in doing this, the majority/lead errs by
implementing an interpretation of Wis. Stat. § 939.46(1m) that
is in derogation of the common law without the unambiguous and
clearly expressed legislative purpose to do so. Because no such
purpose was expressed by the statute, § 939.46(1m) must be
interpreted so as to comport with the common law. See Strenke
v. Hogner, 2005 WI 25, ¶28, 279 Wis. 2d 52, 694 N.W.2d 296 ("A
statute must be interpreted in light of the common law and the
scheme of jurisprudence existing at the time of its
3 Majority/lead op., ¶26.
4Id. (citing Wis. Stat. § 939.47 (necessity is a complete
defense "except that if the prosecution is for first-degree
intentional homicide, the degree of the crime is reduced to 2nd-
degree intentional homicide")).
5Id. (citing State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110).
4
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enactment."). Therefore, I conclude that the trafficking
defense is limited by the chain of statutory cross references
which is in accord with the common law and, therefore, results
in mitigation of a first-degree intentional homicide charge to a
second-degree charge.
C. Abrogation of the Common Law
¶53 It is helpful to review the effect of common law on
statutory interpretation. I begin by noting that it is
axiomatic that a statute does not abrogate a rule of common law
unless the abrogation is clearly expressed and leaves no doubt
of the legislature's purpose. Fuchsgruber v. Custom
Accessories, Inc., 2001 WI 81, ¶25, 244 Wis. 2d 758, 628 N.W.2d
833 (quoting Kranzush v. Badger State Mut. Cas. Co., 103 Wis. 2d
56, 74, 307 N.W.2d 256, 266 (1981)). A statute does not change
the common law unless the legislative purpose to do so is
clearly expressed in the language of the statute. Maxey v.
Redevelopment Auth. of Racine, 94 Wis. 2d 375, 399, 288 N.W.2d
794 (1980). To accomplish a change in the common law, "the
language [of the statute] must be clear, unambiguous and
peremptory." Id. (quoting Wis. Bridge & Iron Co. v. Indus.
Comm'n, 233 Wis. 467, 474, 290 N.W. 199 (1940)).
5
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1. Coercion Generally6
¶54 Coercion occurs when a "threat by a person other than
the actor's coconspirator[7] . . . causes the actor reasonably to
believe that his or her act is the only means of preventing
imminent death or great bodily harm to the actor or another and
which causes him or her so to act." State v. Keeran, 2004 WI
App 4, ¶5, 268 Wis. 2d 761, 674 N.W.2d 570 (quoting Wis. Stat.
§ 939.46(1) (2001-02)). This privilege to act provides a
complete common law defense to any crime except first-degree
intentional homicide. Id.; see also People v. Anderson, 50 P.3d
368, 370-75 (2002) (tracing history of coercion at common law).
6 Initially, an examination of the coercion defense, as well
as its application to the specific crime of sex trafficking,
will be helpful to our discussion.
7 A conspiracy "commences with an agreement between 2 or
more persons to direct their conduct toward the realization of a
criminal objective and each member of the conspiracy must
individually and consciously intend the realization of the
particular criminal venture. Additionally, each conspirator
must have an individual stake in the conspiracy." Bergeron v.
State, 85 Wis. 2d 595, 613, 271 N.W.2d 386 (1978). Regarding
the intent required to be deemed a conspirator, courts have
described the need for a "voluntary" association and intention
to commit the particular criminal venture. United States v.
Wroblewski, 105 F.2d 444, 448 (7th Cir. 1939) (requiring
evidence of "two or more persons, in voluntary cooperation," to
prove a conspiracy). Traffickers form emotional bonds with
their victims and, through ever-present abuse and control,
manipulate them to commit acts they would not otherwise choose
to do. As Legal Action of Wisconsin and LOTUS Legal Clinic
explained in their brief to this court, "the line between
'choice' and 'force' can [quickly] erode" in trafficking
relationships. Kizer says her association with her trafficker
stems from such a relationship.
6
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¶55 Coercion and duress8 "are similar in substance" to
self-defense. United States v. Waller, 605 F. App'x 333, 336
(5th Cir. 2015). "Duress, like the related, and often
overlapping, defenses of self-defense and necessity, is a form
of the affirmative defense of justification." United States v.
Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998). Often described
as "lesser evil" defenses, both duress and self-defense "rest[]
on the belief that a person facing harm is justified in
performing an act, otherwise illegal, less injurious than the
impending loss." United States v. Haynes, 143 F.3d 1089, 1091
(7th Cir. 1998); see also Model Penal Code § 3.02 (collecting
these defenses under the rubric "justification" and "choice[s]
of evil"). While differences exist based on the source of the
threat, these differences are often in nomenclature rather than
in the "nature of the justification." Id.
¶56 Coercion, as a defense, is "limited to the most severe
form of inducement" and requires a finding "under the objective-
reasonable man test, with regard to the reasonableness of the
actor's beliefs that he is threatened with immediate death or
great bodily harm with no possible escape other than the
commission of a criminal act." State v. Amundson, 69 Wis. 2d
554, 568, 230 N.W.2d 775 (1975). Specifically, in trafficking
cases, courts around the country have concluded that various
realities that victims are forced to endure at the hands of the
Courts often use the terms "coercion" and "duress"
8
interchangeably when speaking of circumstances in which a victim
is justified in performing an otherwise illegal act based on a
threat of harm from outside forces. See supra note 9.
7
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traffickers demonstrate coercion. See United States v.
McIntyre, 612 F. App'x 77, 79-80 (3d Cir. 2015) (describing that
victim testimony that they had either been beaten or been
present while others were beaten was sufficient to demonstrate
coercion that was used to cause them to engage in commercial sex
acts); United States v. Fields, No. 8:13-cr-198-T-30TGW, 2013 WL
5278499, at *1 (M.D. Fla. Sept. 18, 2013) (concluding that
trafficker's threat of forcing opiate withdrawal sickness if
victim did not prostitute herself was a harm serious enough to
demonstrate coercion).
¶57 However, due to the circumstances of trafficking and
the relationship between the trafficker and the victim, threats
of bodily harm, sufficient to demonstrate coercion, do not
always line up with the stereotypically immediate examples of
coercion, such as committing a crime while being forced at
gunpoint to do so. As the Legal Action of Wisconsin and LOTUS
Legal Clinic confirmed in their brief to this court,
"trafficking involves manipulating a victim's vulnerabilities,
such as cultural isolation, financial dependency, or a need for
love and belonging." Rather than stand-alone, explicit threats
of violence, traffickers often form emotional bonds with their
victims and, through ever-present abuse and control, manipulate
them to commit acts they would not otherwise choose to do.
¶58 In similar circumstances, courts around the country
have allowed victims of abuse to present expert testimony on
battering and its effects in support of a duress9 defense because
9The Court chose to use the term "duress," instead of
coercion, because that was the term used more prevalently in the
8
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it may help juries "understand the objective reasonableness of a
defendant's actions in the situation [he or she] faced, which
included the history of violent and psychological abuse."
United States v. Dingwall, 6 F.4th 744, 754 (7th Cir. 2021).
¶59 The facts in Dingwall are very similar to the
circumstances of abuse and manipulation that we often see in
trafficking situations. Marjory Dingwall was a victim stuck in
a relationship with her abusive boyfriend, Aaron Stanley. Id.
at 748. After Stanley began to use drugs, a pattern of behavior
emerged: "Stanley would beat Dingwall, then apologize
profusely, and things would then return to 'normal' for a while
until Stanley would fly into a rage again." Id. Stanley
exhibited controlling behavior towards Dingwall, including
stealing her EBT card, making it difficult to buy food. Id.
"Dingwall wanted to leave, but she felt that she had no other
options." Id.
¶60 The abuse became worse when Stanley began using crack
cocaine. Id. To get money for drugs, Stanley began robbing
stores. When he began to feel that he was "hot," he accused
Dingwall of owing him money and pistol-whipped her when she was
not able to come up with any. Id. Stanley then forced Dingwall
Seventh Circuit under similar circumstances. See United States
v. Dingwall, 6 F.4th 744, 746 n.1 (7th Cir. 2021) (explaining
that the Seventh Circuit Pattern Criminal Jury Instructions
"describe[d] 'coercion/duress' as when the defendant has proven
that she committed the offense 'because [she was] coerced'; and
'[t]o establish that [she] was coerced, [the] defendant must
prove' fear of immediate death or serious injury if she did not
commit the offense, and had no reasonable opportunity to refuse
to commit the offense." Seventh Circuit Pattern Crim. Jury
Instr. § 6.08 (2020 ed.)).
9
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to rob a convenience store, which she did. Id. Stanley did not
hit her that night and was "nice" to her, which sent the message
that "committing the crime as ordered was a way to avoid his
abuse." Id.
¶61 This process repeated itself two more times until
Dingwall was arrested and charged with three counts of robbery.
Id. at 749. However, she claimed that she committed the
robberies under duress, in fear of violence at the hands of her
boyfriend. Id. at 745-46. The district court denied Dingwall's
claim and concluded that it was "not sufficient under existing
circuit precedent, reasoning that even if Dingwall's evidence
were credited, the duress requirements of imminence and of no
legal alternatives could not be satisfied." Id. at 750.
¶62 On appeal, the Seventh Circuit joined numerous state
courts, as well as the Sixth, Ninth, and District of Columbia
Circuits in concluding that a victim of abuse may put forth a
duress defense by producing expert testimony on battering and
its effects. Id. at 754. In so doing, the Court rejected a
"strict physical proximity test to establish a reasonable fear
of imminent violence." Id. at 757. It reasoned that a jury
could conclude that Stanley's pattern of abuse and manipulation
demonstrated "an expectation of and level of control over
Dingwall, even when physically separate" and that "Stanley's
threats could have caused a reasonable person in Dingwall's
situation to fear imminent violence." Id. at 758.
¶63 The Court also concluded that Stanley's continuous
violence against Dingwall, contrasted with his being "nice" when
10
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Dingwall did what he wanted, "showed a level of manipulation and
a style of communication that could lead a reasonable person in
her situation to have interpreted Stanley's demands and behavior
as a threat of imminent violence unless she committed each
robbery." Id. Likewise, the Court concluded that the repeated
abuse and its psychological impact on Dingwall were factors that
could be considered in determining whether she reasonably
believed that she lacked an alternative to breaking the law.
¶64 Accordingly, the Seventh Circuit reversed the district
court and concluded that the evidence of battery and its effects
was potentially relevant and sufficient to support a duress
defense to the robbery charges. Id. at 761. In doing so, it
recognized that victims of abuse and manipulation——like that
experienced by trafficking victims——are able to utilize the
traditional coercion/duress defense for most criminal defenses.
11
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2. Coercion10 as a Defense to Murder under the Common Law
¶65 "Stemming from antiquity, the [constant tradition] of
Anglo-American common law is that duress never excuses murder,
that the person threatened with his own demise 'ought rather to
die himself, than escape by the murder of an innocent.'" Joshua
Dressler, Exegesis of the Law of Duress: Justifying the Excuse
and Searching for Its Proper Limits, 62 S. Cal. L. Rev. 1331,
1370 (1989) (quoting 4 W. Blackstone, Commentaries on the Laws
of England, at *30). In the seminal case, Regina v. Tyler, two
men were on trial for the murder of a town constable. Regina v.
Tyler, [1837] 8 C.P. 616, 923. The two men were followers of a
revolutionary, a man named Thom. Id. Thom shot and stabbed the
constable and, while the constable was still alive, ordered the
10 For purposes of the common law rule prohibiting the use
of coercion as a complete defense to first-degree murder, courts
historically have used the defenses of "coercion" and "duress"
interchangeably. See, e.g., Moes v. State, 91 Wis. 2d 756, 766,
284 N.W.2d 66 (1979) (employing both terms and explaining that
the obligation for the state to disprove an affirmative defense
was not changed in 1955 when Wisconsin adopted the criminal
code; Campbell v. State, 999 P.2d 649, 659 (Wyo. 2000) (citing
Amin v. State, 811 P.2d 255, 260 (Wyo. 1991)) ("Coercion or
duress has been recognized as a defense to criminal charges,
other than a charge of taking the life of an innocent person.
Coercion or duress must be present, imminent or impending, and
of such a nature so as to induce a well-grounded fear of death
or serious bodily harm if the otherwise criminal act is not
done."); Frasher v. State, 260 A.2d 656, 661 (Md. Ct. Spec. App.
1970) (citing 1 Anderson Wharton's Criminal Law § 123, at 261)
("[I]t is a defense as to all crimes except taking the life of
an innocent person that the defendant acted under a compelling
force of coercion or duress."); 40 Am. Jur. 2d Homicide § 107
(2019) ("It is generally held that neither duress, coercion, nor
compulsion are defenses to murder . . . ." (citations omitted)).
Cf. People v. Heath, 255 Cal. Rptr. 120, 125 (Cal. Ct. App.
1989) (critiquing conflation of duress and necessity without
comment on conflation between coercion and duress).
12
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defendants to throw the constable into a ditch. Id. at 923-24.
Thom was later killed by the military and the defendants were
arrested for their role in the constable's murder. Id. at 924.
¶66 At trial, the defendants argued that they complied
with the order only "from a fear of personal violence to
themselves at the hands of Thom." Id. at 924. Lord Denman,
sitting in judgment for the Crown, concluded that this excuse
must be "discard[ed,]" id. at 926, and these circumstances had
"never been received by the law as an excuse for his crime, and
the law is, that no man, from a fear of consequences to himself,
has a right to make himself a party to committing mischief on
mankind." Id. at 925.
¶67 Similarly, the Alabama Supreme Court concluded that a
man was not excused for murder, even when he was forced to do so
at gunpoint. Arp v. State, 12 So. 301, 302-03 (Ala. 1893). In
so concluding, the court traced the history of the common law's
treatment of coercion as a defense to murder. See id. at 302-
03. The Court recognized that the authorities were conclusive
that "at common law no man could excuse himself, under the plea
of necessity or compulsion, for taking the life of an innocent
person." Id. at 303. In keeping with the common law history,
the Court upheld the conviction and reasoned that "the immediate
necessity or compulsion under which he acted at the time [was]
no excuse to him." Id. at 304.
¶68 Likewise, in recent history, the California Supreme
Court has reaffirmed the prudence behind the common law's
tradition by concluding that, "as in Blackstone's England, so
13
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today in California: fear for one's own life does not justify
killing an innocent person." Anderson, 50 P.3d at 369. In
Anderson, the defendant, Anderson, and his accomplice, a man
named Kiern, were convicted of murdering a camp counselor who
had allegedly molested one of their children. Id. at 370.
According to Anderson, a large group of people, including
himself and Kiern, had kidnapped the counselor, taken her out to
a field, stripped her of her clothes, beat her, put duct tape
over her mouth, and abandoned her. Id. Anderson and Kiern
later saw the counselor going naked down the street. Id. The
two grabbed her and forced her into the back of Kiern's car and
drove away. Id.¶69 Anderson testified that, after they had re-kidnapped
the counselor and brought her back to the field, Kiern ordered
him to get a nearby rock. Id. The defendant replied that Kiern
was "out of [his] mind," to which Kiern responded, "Give me the
rock or I'll beat the shit out of you." Id. Because of the
physical disparities between himself and Kiern, the defendant
testified to being scared that Kiern would "break [his] neck" if
he did not comply. Id. Using the rock retrieved by Anderson,
Kiern knocked the counselor unconscious and later the two killed
her by dropping a small boulder on her head. Id.¶70 At trial, Anderson, based primarily on his "testimony
that Kiern threatened to 'beat the shit out of' him, []
contended on appeal that the trial court erred in refusing to
instruct the jury on duress as a defense to the murder charge."
Id. The California Supreme Court, in affirming the refusal to
14
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instruct the jury on defense, explained that the common law
reasoning for the defense of duress for crimes is that "for
reasons of social policy, it is better that the defendant, faced
with a choice of evils, choose to do the lesser evil (violate
the criminal law) in order to avoid the greater evil threatened
by the other person." Id. at 371 (quoting Wayne R. LaFave,
Criminal Law, § 5.3(b), at 467 (3d ed. 2000)). However, this
lesser of two evils rationale is "strained when a defendant is
confronted with taking the life of an innocent third person in
the face of a threat on his own life[.]" Id. (quoting United
States v. LaFleur, 971 F.2d 200, 205 (9th Cir. 1991)). "When
the defendant commits murder under duress, the resulting harm——
i.e. the death of an innocent person——is at least as great as
the threatened harm——i.e. the death of the defendant."
Anderson, 50 P.3d at 371 (quoting LaFleur, 971 F.2d at 205).
¶71 The Court concluded that the reasoning behind the rule
that fear for one's own life does not justify killing an
innocent person applies "as well to 19th-century California as
to Blackstone's England." Anderson, 50 P.3d at 374.
Accordingly, it concluded that both the common law and
California law prohibited duress from being a defense to murder.
Id.¶72 In Wisconsin, the common law defense of coercion is
codified in Wis. Stat. § 939.46(1) which provides:
A threat by a person other than the actor's
coconspirator which causes the actor reasonably to
believe that his or her act is the only means of
preventing imminent death or great bodily harm to the
actor or another and which causes him or her so to act
15
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is a defense to a prosecution for any crime based on
that act, except that if the prosecution is for first-
degree intentional homicide, the degree of the crime
is reduced to 2nd-degree intentional homicide.
Section 939.46(1) explicitly confirms the common law rule that
coercion is not a complete defense to first-degree intentional
homicide. In addition, the legislature has provided that a
successful coercion defense may mitigate a first-degree
intentional homicide to 2nd-degree. Wis. Stat. § 940.01(2)(d).
3. Wisconsin Stat. § 939.46(1m)
¶73 Wisconsin Stat. § 939.46(1m) follows the codification
of the common law defense of coercion. It provides, "A victim
of a violation of s. 940.302(2) or 948.051 has an affirmative
defense for any offense committed as a direct result of the
violation of s. 940.302(2) or 948.051 without regard to whether
anyone was prosecuted or convicted for the violation of
s. 940.302(2) or 948.051." § 939.46(1m). The majority/lead
asserts that it is "unclear" whether subsec. (1m) constitutes a
coercion defense11 and determines that subsec. (1m) is ambiguous
as to the question of whether it provides a complete defense to
first-degree intentional homicide or merely mitigates it to a
charge of second-degree.12 The majority/lead opinion further
concludes that there are no extrinsic sources, including
legislative history that can be used to resolve the ambiguity.13
Accordingly, the majority/lead resorts to the rule of lenity to
11 Majority/lead op., ¶25.
12 Id., ¶27.
13 Id., ¶28.
16
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conclude that subsec. (1m) provides the accused a complete
defense to first-degree intentional homicide.14 I disagree and
conclude that extrinsic factors direct us towards the conclusion
that subsec. (1m) mitigates a charge of first-degree intentional
homicide to a second-degree charge consistent with Wis. Stat.
§ 939.46(1).
¶74 The first question that must be answered is whether
Wis. Stat. § 939.46(1m) provides a coercion defense at all. The
majority/lead opinion asserts that "common law coercion is
irrelevant to our analysis."15 As previously noted, subsec. (1m)
is located under the section title, "Coercion." And while the
majority/lead is correct that "titles . . . are not part of the
statutes[,]"16 they are "permissible indicators of meaning."
State v. Lopez, 2019 WI 101, ¶41, 389 Wis. 2d 156, 936 N.W.2d
125 (Rebecca Grassl Bradley, J., concurring) (quoting Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts, 221 (2012)). Statutory titles may be used to
resolve a doubt and confirm a statute's meaning. Id., ¶¶26-29.
Because we "presume that the legislature is aware of existing
law when it passes a new statute[,]" we presume the placement of
subsec. (1m) was not done accidentally or without prior thought.
Prosser v. Leuck, 225 Wis. 2d 126, 150, 592 N.W.2d 178 (1999).
"When the legislature adopts non-statutory language in titles,
that language has meaning and reflects a decision of the
14 Id., ¶29.
15 Id., ¶28 n.11.
16 Id., ¶25 (quoting Wis. Stat. § 990.001(6)).
17
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legislature." Lopez, 389 Wis. 2d 156, ¶27. See also Scalia &
Garner, supra, 327 (quoting James DeWitt Andrews, "Statutory
Construction," in 14 American Law and Procedure 1, at 21-22
(James Parker Hall & James DeWitt Andrews eds., rev. ed. 1948)
("The title is adopted by the legislature.")).
¶75 The availability of Wis. Stat. § 939.46(1m) as a
coercion defense is confirmed by the legislative history.
Subsection (1m) was based, in part, on the model legislation
compiled by the Polaris Project.17 A provision of the model
legislation, included and referenced throughout the drafting
materials, directed that legislatures to include the following
section:
VICTIM IMMUNITY FROM PROSECUTION
In any prosecution of a person who is a victim of
trafficking in persons, it shall be an affirmative
17 According to the document,
The Model Elements of Comprehensive State Legislation
to Combat Trafficking in Persons (Comprehensive Model
Law) is divided into three sections: 1) Prosecution,
2) Prevention of Trafficking, and 3) Victim
Protection. Language in this model law draws from
numerous sources, including: A) the Trafficking
Victims Protection Act of 2000, Pub. L. No. 106-386;
B) Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today (PROTECT) Act of 2003,
Pub. L. No. 108-21; C) the Department of State's Model
Anti-trafficking law, released March 12, 2003, D) the
Department of Justice's Model State Anti-trafficking
Criminal Statute, released July 16, 2004; and
E) current proposed and previously enacted State
Statutes related to combating human trafficking in
various U.S. States.
Drafting File, 2007 Act 116, Legislative Reference Bureau,
Madison, Wis.
18
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defense that he or she was under duress [if defined
under state law] and/or coerced [if defined under
state law] into committing the offenses for which he
or she is being subject to prosecution.
This characterization of subsec. (1m) as a defense of coercion
in the model legislation, coupled with the legislature's
decision to place it within § 939.46 (titled "Coercion") is
persuasive evidence that subsec. (1m) provides a coercion
defense.
¶76 Because coercion does not provide a complete defense
to first-degree intentional homicide at common law and because
Wis. Stat. § 939.46(1m) is a coercion defense, the next question
I must answer is whether subsec. (1m)'s language "clearly
expresse[s]" and "leaves no doubt" of the legislature's purpose
to abrogate the common law principle that coercion is not a
complete defense to first-degree intentional homicide.
Fuchsgruber, 244 Wis. 2d 758, ¶25. I conclude that § 939.46(1m)
does not abrogate the common law.
¶77 Initially, I note that the majority/lead opinion
implicitly agrees that the language of Wis. Stat. § 939.46(1m)
does not expressly abrogate the common law by providing a
complete defense to first-degree intentional homicide. The
majority/lead admits that it is "unclear" whether subsec. (1m)
"would mitigate a first-degree intentional homicide charge to a
second-degree one."18 This is hardly indicative that the
language is a "clear, unambiguous and peremptory" abrogation.
Maxey, 94 Wis. 2d at 399.
18 Majority/lead op., ¶25.
19
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¶78 Nelson v. Hansen, provides a helpful example of the
type of language needed to abrogate the common law. Nelson v.
Hansen, 10 Wis. 2d 107, 102 N.W.2d 251 (1960). The common law
rule addressed in Nelson was that an "owner was not liable for
damages resulting from the vicious act of his dog unless he had
prior knowledge of its vicious propensities . . . or the injury
was attributable to some negligence [in the manner in which the
owner kept his domestic animals]." Id. at 113. Furthermore, a
domestic animal owner who neither (1) owned an animal that was
known to be abnormally dangerous and (2) had reason to know was
abnormally dangerous but which was likely to do harm unless
controlled, "[was] liable for the harm done by such an animal
only if he fail[ed] to exercise reasonable care to confine or
otherwise control it, or the harm is of a sort which it is
normal for animals of that class to do." Id. at 113–14.
¶79 In Nelson, we examined what effect Wis. Stat. ch. 174
(1955-56) had on this common law rule. See id. at 115.
Wisconsin Stat. § 174.02 provided that:
Owner's liability. The owner or keeper of any dog
which shall have injured or caused the injury of any
person or property or killed, wounded or worried any
horses, cattle, sheep or lambs shall be liable to the
person so injured and the owner of such animals for
all damages so done, without proving notice to the
owner or keeper of such dog or knowledge by him that
his dog was mischievous or disposed to kill, wound, or
worry horses, cattle, sheep, or lambs.
Id. at 113 n.1 (quoting § 174.02). We concluded that the
statute's language expressly provided that it was "dispens[ing]
with the necessity of proving scienter in cases when the injury
is done by a dog because of a mischievous trait or propensity."
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Id. at 119. Accordingly, because of the unambiguous overlap and
clear applicability of the statute to an aspect of the common
law rule on dog owner liability, we recognized that the section
abrogated a portion of the common law. Id. We also concluded
that because the elimination of scienter was in derogation of
the common law, § 174.02 must be strictly construed. Id. at
119.
¶80 Turning to Wis. Stat. § 939.46(1m), the clear
expression of the legislature's desire to abrogate the common
law is not present. As the majority/lead concedes, common law
coercion was not a defense to homicide. The common law rule is
clear: coercion is not and has never been a complete defense to
first-degree intentional homicide.
¶81 The majority/lead opinion, by concluding that Wis.
Stat. § 939.46(1m) provides a complete defense, ignores that
subsec. (1m)'s text does not clearly express a complete defense
to first-degree intentional homicide. Therefore, the
majority/lead opinion is forced to rely on an absence of
statutory text to make its conclusions.19 Accordingly, because
the majority/lead's interpretation of subsec. (1m) provides a
complete defense to first-degree intentional homicide, it
abrogates the common law without the required level of
legislative clarity and purpose; therefore, its interpretation
of § 939.46(1m) is erroneous.
D. Statutory Interpretation
19 Id., ¶26.
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¶82 Finally, the last remaining question that I must
answer is, "How should Wis. Stat. § 939.46(1m) be interpreted if
it cannot provide a complete defense?" The State's argument,
consisting of statutory cross-references, is grounded in the
text and context of § 939.46(1m) and supports the common law
rule that coercion is not a complete defense to first-degree
intentional homicide. Accordingly, I conclude that § 939.46(1m)
has the potential to reduce the crime of first-degree
intentional homicide to a charge of second-degree intentional
homicide, as the statutory links I examine below show.
¶83 Wisconsin Stat. § 940.01(1) is our first statute to
consider. It sets out the elements of first-degree intentional
homicide. Section 940.01(1) is linked to "Mitigating
circumstances" in § 940.01(2).
¶84 Wisconsin Stat. § 940.01(2), our second link,
provides, "The following are affirmative defenses to prosecution
under this section which mitigate the offense to 2nd-degree
intentional homicide under s. 940.05." Subsection 940.01(2) has
various paragraphs, one of which is relevant to our discussion.
¶85 Wisconsin Stat. § 940.01(2)(d), our third link,
provides that first-degree intentional homicide is mitigated to
second-degree homicide when, "Death was caused in the exercise
of a privilege under s. 939.45(1)." The question at this point
in my examination of the context in which Wis. Stat.
§ 939.46(1m) was placed is whether the trafficker's death was
cause by Kizer's exercising a "privilege under s. 939.45(1)."
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¶86 Accordingly, I move to the fourth link, Wis. Stat.
§ 939.45, which provides, "The fact that the actor's conduct is
privileged, although otherwise criminal, is a defense to
prosecution for any crime based on that conduct. The defense of
privilege can be claimed under any of the following
circumstances[.]"
¶87 Wisconsin Stat. § 939.45(1) is the fifth link. It
provides, "(1) When the actor's conduct occurs under
circumstances of coercion or necessity so as to be privileged
under s. 939.46 or 939.47," the defendant can raise the defense
of privilege "under [Wis. Stat.] § 939.46." Here, Kizer claims
a defense of privilege by raising § 939.46(1m), which as I
explained above, and summarize below, involves coercion.
¶88 Wisconsin Stat. § 939.46 is titled, "Coercion." The
majority/lead implies and I conclude that Kizer, as a
commercially sex trafficked victim, was subjected to on-going
coercion by her trafficker, whom she killed. Therefore, she has
alleged the required status of a coerced defendant to raise
privilege under § 939.46 as a defense to prosecution for his
homicide according to the directive of Wis. Stat. § 939.45(1).
¶89 The sixth link in the legislature's statutory chain
places us on Wis. Stat. § 939.46(1m). Section 939.46(1m) falls
within Wis. Stat. § 939.45(1)'s general designation of § 939.46
as a collective provision that does not limit § 939.46's use by
subsection designation. Therefore, § 939.45(1) includes the
subsection at issue here, § 939.46(1m), to which coercion is a
defense.
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¶90 As I have explained in some detail earlier, at common
law, coercion is not a complete defense to first-degree
intentional homicide. That continued when common law coercion
was codified in Wis. Stat. § 939.46(1). In addition,
§ 939.46(1) provided the potential to mitigate first-degree
intentional homicide to 2nd-degree intentional homicide.
Because the legislature did not clearly express an intent to
abrogate the common law when it codified coercion in
§ 939.46(1), but simply provided the potential to mitigate
first-degree intentional homicide to 2nd-degree intentional
homicide, employing § 939.46 as a collective provision at the
directive of § 939.45(1) encompasses both §§ 939.46(1) and
939.46(1m).
¶91 "[T]he purpose of statutory interpretation is to
determine what the statute means so that it may be given its
full, proper, and intended effect." Kalal, 271 Wis. 2d 633,
¶44. In addition to the plain words of the text, "[c]ontext is
important to meaning." Id., ¶46. Rather than in isolation,
"statutory language is interpreted in the context in which it is
used; . . . in relation to the language of surrounding or
closely-related statutes . . . ." Id. "Statutes are closely
related when they are in the same chapter, reference one
another, or use similar terms." Reyes Fuerte, 378 Wis. 2d 504,
¶27 (citing CC Midwest, Inc., 302 Wis. 2d 599, ¶24). "[A]
plain-meaning interpretation cannot contravene a textually or
contextually manifest statutory purpose." Kalal, 271 Wis. 2d
633, ¶49. Similarly, in "construing or interpreting a statute
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the court is not at liberty to disregard the plain, clear words
of the statute." Id., ¶46.
¶92 Apart from its derogation of the common law, the
majority/lead's interpretation of Wis. Stat. § 939.46(1m) also
fails because it seeks to contravene a textually and
contextually manifest interpretation. The majority/lead
concludes that, based on the statute's context and comparisons
to the language in other statutes, "a defense is complete as to
first-degree intentional homicide unless the statute contains
express language regarding mitigation."20 While comparisons to
surrounding statutes are a permissible source of statutory
context, they are not the only source. "Statutes are closely
related when they . . . reference one another[.]" Section
939.46(1m) is linked, through the cross-reference chain I
describe above, to Wis. Stat. § 940.01 which lists affirmative
defenses that mitigate a charge of first-degree intentional
homicide to second-degree intentional homicide.
¶93 Furthermore, the majority/lead's interpretation
elevates the negative implication of Wis. Stat. § 939.46(1m)'s
text (the absence of explicit mitigation language) over its
plain, objective meaning, as understood by the statutory cross-
references described above. It is the text of the statute that
controls——not the absence of text.21 By failing to read the
20 Id. (citing Kalal, 271 Wis. 2d 633, ¶46).
See Corley v. United States, 556 U.S. 303, 327 (2009)
21
(Alito, J., dissenting) (stating that there is no authority for
"a canon of interpretation that favors a 'negative
implication'. . . over clear and express statutory language.").
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statute reasonably, see Scalia & Garner, supra, 355, the
majority/lead misses the forest for the trees and contravenes
the textually and contextually manifest purpose of the statutory
scheme enacted by the legislature. Because both the text and
context of § 939.46(1m) instruct me to do so, I conclude that
§ 939.46(1m) has the potential to mitigate a charge of first-
degree intentional homicide to a charge of second-degree
intentional homicide, rather than providing the perpetrator
complete exoneration for the crime.
III. CONCLUSION
¶94 In accord with the common law principle that coercion
is not a complete defense to first-degree intentional homicide
as well as the text and surrounding context of Wis. Stat.
§ 939.46(1m), I conclude that § 939.46(1m)'s trafficking
defense, which is grounded in coercion, is not a complete
defense to first-degree intentional homicide. Rather, it comes
within § 939.46(1) and has the potential to mitigate the charge
of first-degree intentional homicide to second-degree
intentional homicide. The majority/lead opinion errs because
its interpretation of § 939.46(1m) abrogates the common law by
making coercion a complete defense to first-degree intentional
homicide and ignoring the context in which the legislature
placed § 939.46(1m). Accordingly, I respectfully dissent.
¶95 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice BRIAN HAGEDORN join this dissent.
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