Case 2021CF000374 Document 200 Filed 12-01-2022 Page 1 of 3

FILED
12-01-2022
Clerk of Circuit Court
Outagamie County

791 WIS JI-CRIMINAL 791

2021CF000374

791 HUMAN TAFFICKING DEFENSE Wis. Stat. § 939.46

The defense provided to victims of human trafficking is an issue in this case.1 The

Human Trafficking Defense allows a person to engage in conduct that would otherwise

be criminal under certain circumstances. Wisconsin law provides a complete defense2 to

a victim of human trafficking who commits any offense as a direct result of a human

trafficking violation, regardless of whether anyone was prosecuted or convicted of a

human trafficking violation.

The human trafficking defense has two elements. First, the State must prove

beyond a reasonable doubt that the defendant was not a victim of human trafficking.

1 Despite the inclusion of the “human trafficking” as a defense under the “Coercion” statute (Wis. Stat. §
939.46(1m)), the word “coercion” is not used in any part of this instruction. The Kizer decision expressly
recognized that “not every subsection” of Wis. Stat. § 939.46 “is a coercion defense” and that statutory titles “are
not part of the statutes.” State v. Kizer, 2022 WI 58, ¶25, 403 Wis. 2d 142, 976 N.W.2d 356; see also Wis. Stat. §
990.001(6). “Coercion” is an entirely different defense specifically defined by Wis. Stat. § 939.46(1) as “[a] threat
by a person other than the actor's co-conspirator which causes the actor reasonably to believe that his act is the only
means of preventing imminent death or great bodily harm to himself or another and which causes him so to act….”
The human trafficking defense, on the other hand, does not require a direct threat from another person which causes
the defendant to act. State v. Kizer, 2022 WI 58, ¶¶ 14, 15, 17, 18, 403 Wis. 2d 142, 976 N.W.2d 356. The
defendant need not commit the offense “at the trafficker’s behest,” with the trafficker’s knowledge, or in
“furtherance of the underlying trafficking violation.” Kizer, at ¶¶ 17, 18. The definition of “cause,” moreover, is far
broader. The offense need not be “a foreseeable result” of the trafficking; nor must it proceed “relatively
immediately” from the trafficking violation. Kizer, at ¶15. There may be “other causes at play.” Kizer, at ¶¶ 14, 17.
A victim of human trafficking is viewed in a much larger context: “[u]nlike many crimes, which occur at discreet
points in time, human trafficking can trap victims in a cycle of seemingly inescapable abuse that can continue for
months, or even years.” Kizer, at ¶15. There are other differences as well. Unlike the “coercion” defense, there is
no exception for co-conspirators. There is no “reasonable belief” requirement. And in the case of a First Degree
Homicide charge, trafficking is a complete defense rather than a mitigating factor. Kizer, at ¶26.
2 Wis. Stat. § 939.46(1m) creates a complete defense to first-degree intentional homicide. Kizer, at ¶26.
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Second, the State must prove beyond a reasonable doubt that the defendant’s offense was

not a direct result of the human trafficking violation. 3

Victim of Human Trafficking

A person is a victim of human trafficking if they were recruited, enticed, harbored,

transported, provided, or obtained by another, or there was an attempt to recruit, entice,

harbor, transport, provide, or obtain them by another, for the purpose of (labor or

services) (a commercial sex act) and does so by (Causing or threatening to cause bodily

harm to any individual)(Causing or threatening to cause financial harm to any

individual)(Restraining or threatening to restrain any individual) (Violating or threatening

to violate a law) (Destroying, concealing, removing, confiscating, or possessing, or

threatening to destroy, conceal, remove, confiscate, or possess, any actual or purported

passport or any other actual or purported official identification document of any

individual) (Extortion) (Fraud or deception) (Debt bondage) (Controlling or threatening

to control any individual’s access to an addictive controlled substance) (Using any

scheme, pattern, or other means to directly or indirectly coerce, threaten, or intimidate

any individual) (Using or threatening to use force or violence on any individual) (Causing

or threatening to cause any individual to do any act against the individual’s will or

without the individual’s consent).

3 As an affirmative defense, the defendant must produce “some evidence” on which a reasonable jury could find the
defense applies. State v. Kizer, 2022 WI 58, ¶19, 403 Wis. 2d 142, 976 N.W.2d 356. This is a “low bar.” State v.
Johnson, 2021 WI 61, ¶17, 397 Wis.2d 633, 961 N.W.2d 18. The standard is met even if the the evidence is “weak,
insufficient, inconsistent, or of doubtful credibility or slight.” State v. Stietz, 2017 WI 58, ¶17, 375 Wis.2d 572, 895
N.W.2d 796. The circuit court cannot weigh the evidence but rather view it most favorably to the defendant. Id.
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Direct result of human trafficking violation

A trafficking victim’s offense is committed as a direct result of a human

trafficking violation if there is a logical, causal connection between the offense and the

trafficking. The trafficking need not be the sole cause of the offense as long as the

offense did not result, in significant part, from other events, circumstances, or

considerations unrelated to the trafficking violation.4 The offense need not be a

foreseeable result of the trafficking violation; need not proceed relatively immediately

from the trafficking violation; and need not be at a time or place closely related to the

trafficking violation.5

Burden of Proof

The State must prove by evidence which satisfies you beyond a reasonable doubt6

that the defendant was not a victim of human trafficking who committed the offense as a

direct result of a human trafficking violation.

Jury’s Findings

If you are satisfied beyond a reasonable doubt that all the elements of ________

offense have been proved and that the defendant was not a human trafficking victim who

committed the offense as a direct result of a human trafficking violation, you should find

the defendant guilty. If you are not so satisfied, you must find the defendant not guilty.

4 Kizer, at ¶¶17, 30.

5 Kizer, at ¶¶15, 17, 18.
6 Kizer, at ¶9