State v. Chrystul D. Kizer

2022 WI 58

• Court: Wisconsin Supreme Court
• Decided: July 6, 2022
• Docket: 2020AP000192-CR
• Status: Published

Opinion

2022 WI 58

SUPREME 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 136 PDC 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 Naikan 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 58 NOTICE 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

violation, is a logical and reasonably foreseeable consequence

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

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

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

there is a logical, causal connection between the offense and

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

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

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

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 No. 2020AP192-CR.pdr

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 No. 2020AP192-CR.pdr

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)).

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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.

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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.

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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 No. 2020AP192-CR.pdr

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.)).

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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

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.

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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).

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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

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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 No. 2020AP192-CR.pdr

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

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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.

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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)).

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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.

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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.

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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." 20 No. 2020AP192-CR.pdr

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

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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