[music]

Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. We'll get into today's show in just a minute, and I promise just one minute, but first, today is GivingTuesday, the day each year after Black Friday and Cyber Monday, when nonprofits like us ask that in addition to your spending on holiday gifts, that you set some money aside for donations to charities and cultural institutions, and nonprofits like ours for what we've offered you in 2021 and to keep it viable for 2022.

Just to take this show as an example, 2021 has been a year when many people have been listening to get information about COVID and dispel dis-information about COVID, true information about January 6th, and dispel disinformation about it, to hear the candidates for mayor of New York, Governor of New Jersey, and other election choices who all came on this show and on this station.

You also get your voice heard on the phones, appropriate we think to a community-funded radio station, and because the show is live, maybe it helps you feel like you're in a community not so isolated in these politically and pandemically isolating times. If WNYC has served you this year with information, opinion, community connections, maybe a little inspiration, we hope you'll think of us for your list on this GivingTuesday, 2021. If so, you can call 888-376-WNYC, 883-376-9692, or make your GivingTuesday donation at wnyc.org. Thank you so much for considering it today.

Now, in Kenosha, Wisconsin, there was of course the acquittal of Kyle Rittenhouse based on his controversial claim that he was acting in self-defense. The case raised issues of where the line is for a self-defense claim when you allegedly provoked the confrontation in the first place. You know all that. Well, there's another murder case in Kenosha, Wisconsin, that also involves a controversial claim of defending oneself but under very different circumstances, but like Kyle Rittenhouse, the defendant was just 17 when the killing occurred. Like with Kyle Rittenhouse, this case could have implications for what the law considers a threat to a person before they're allowed to kill.

Do you know about this case yet? The defendant is Chrystul Kizer. She's now 21. When she was 17 she killed her alleged sexual abuser and sex trafficker, a man named Randall Philip Volar III. With us now to explain what's at stake for Chrystul Kizer and potentially many victims of child sex trafficking are two guests; Kami Chavis, Director of the Criminal Justice Program at the Wake Forest University School of Law, and Washington Post correspondent Jessica Contrera, who is writing about the Chrystul Kizer case and sex trafficking law more broadly, including for The Post's site, The Lily, which concentrates on issues relevant to millennial women.

Professor Chavis and Jessica Contrera, thank you so much for your time today. Welcome to WNYC.

Jessica Contrera: Thank you.

Professor Chavis: Thank you.

Brian Lehrer: Jessica, tell our listeners who may never have even heard this name before many of them, who is Chrystul Kizer and under what circumstances did she kill Randall Phillip Volar III?

Jessica Contrera: Thank you so much for asking about that. Chrystul was first and foremost a teenager; she is a violinist and an artist. Her family was going through a really tough time when they moved to Wisconsin, shortly before she met Randy Volar. They were escaping a domestic abuser of her mother's, they were living in a shelter for a time, and Chrystul during that time met a 34-year old man who was willing to take her to dinner and buy her gifts and give her cash for her sisters with a very clear motive for what he expected in return and he filmed his sexual acts of Chrystul for a period that lasted almost two years.

Chrystul spoke to me at the time when she was in the Kenosha jail, we had extensive conversations in which I learned that she felt that she wanted to get out of this situation. The case at hand is about a night in 2018 when Chrystul went to Randy Volar's house. He had paid for her Uber to come over. According to Chrystul, he gave her drugs that night. According to Chrystul, he pinned her down to the floor when she said that she did not want to have sex with him and she wiggled away and went for a gun.

She has admitted to shooting him in the head twice. She also lit his house on fire and fled in his car. What the prosecution says is Chrystul premeditated this murder, that she was intending to steal the car. What Chrystul says is she didn't ever mean for this to happen and she was acting in self-defense.

Brian Lehrer: Just to be clear on the language that we're using, your article and many others that have been written about this case refer to it as a sex trafficking case, which would make many people think of transporting her and selling access to her, in effect, to other people, but this is about Volar's own alleged abuse of Chrystul Kizer, correct?

Jessica Contrera: That's right, it's really important to understand that children cannot consent to any kind of commercial sex act. Anytime that someone who is an adult is paying a child for sex, that is sex trafficking. It doesn't really matter what the circumstances are, under the federal law, a child cannot consent to being sold for sex. Chrystul, just on that definition alone is a victim of child sex trafficking.

Brian Lehrer: Professor Chavis, I see that one issue in the case is whether Chrystul Kizer is even allowed to use a certain kind of defense in court, one known in Wisconsin law as the affirmative defense law. Affirmative defense, slightly different from self-defense like what Kyle Rittenhouse used. Can you explain the concept of affirmative defense and what kinds of defendants have successfully used it in the past?

Professor Chavis: Yes. When we're thinking about affirmative defenses, so in this case, it's not that Chrystul is saying, I did not kill Mr. Volar, I did not do these acts, she's saying, I did them, but I was justified in doing them. Very much like self-defense, you're basically saying, that, yes, I did this, but it's not a crime given the conditions that I was under, and here it's that she was fearful because of the situation. In many ways, it's a little bit of an expansion of like self-defense, basically saying, I would like to use this defense to free me from being responsible for this act.

Brian Lehrer: Jessica, that's not even to say Chrystul Kizer is innocent or guilty under that standard, the issue right now, is whether she's even permitted by the court to claim affirmative defense?

Jessica Contrera: That's right. In Wisconsin, this affirmative defense law is similar to one that exists in many states, and specifically written for sex trafficking victims. It says that if you can show that the crime that you committed was a "direct result" of the trafficking you were experiencing, then you can be acquitted of that crime.' Chrystul's legal team has said all along, it's very clear, she's a victim of sex trafficking and that the way the affirmative defense law was written is broad. It says any offense, so they believe that should include homicide.

The state has argued differently. They have said at various points that they do not think that it should apply to homicide and that even if it did, it wouldn't mean that Chrystul could be acquitted of the charge, merely that it would go from first-degree homicide, which would essentially be life in prison, potentially, or just down to second degree, which means she could face up to 60 years.

This legal battle has all been playing out before Chrystul even goes to trial, and it has gone-- A judge in Kenosha ruled that Chrystul did not have access to the affirmative defense. An Appeals Court in Wisconsin ruled and reversed that decision saying, yes, Chrystul should be allowed to use the affirmative defense, she should be allowed to present this evidence that her crime was a direct result of trafficking. Now the case is sitting at the Wisconsin Supreme Court. They will make a decision about whether Chrystul can use the affirmative defense or whether she might have to rely on a more traditional self-defense argument.

Brian Lehrer: Professor Chavis, what, to the extent that you know, is the precedent that exists already under the law in Wisconsin or anywhere else in the United States about killings committed by abuse victims, domestic abuse victims, sex trafficking victims, or others you might want to cite for where the legal line has been for a successful defense on that basis?

Professor Chavis: Yes. Of course, the laws vary and the cases vary, but there have been successful defenses under-- I know particularly in several states where you have domestic violence victims. The case of the burning bed, people may be familiar with that filming and what's depicted there, but this is where the victim typically, or I'm sorry, the domestic violence victim is not in any imminent danger which generally traditional self-defense, you'd have to be in some type of imminent danger which is again very close to what Kyle Rittenhouse was arguing that in the middle of all of these protestors and the things that were happening, he feared for his life, and the defense was able to show and the jury credited his testimony that he had fear of that imminent danger.

Here it's different because if someone is, for example, sleeping or not at the time, they're not engaging in a particular act, it becomes more difficult to use that traditional self-defense. That's why this affirmative defense in Wisconsin is so important, and so important to the facts of the Chrystul Kizer case because it's not that at that moment she was fearful, but the power that sex traffickers have over children in these circumstances, as well as, and again, we can think about other jurisdictions where they've expanded the self-defense doctrine in this way and it can be very helpful to show that you don't necessarily have to wait for that imminent danger in order to protect yourself.

Brian Lehrer: Do you think this case could set legal precedence if it goes one way or another, especially if Chrystul Kizer gets off?

Professor Chavis: I think it could. There are similar cases in different jurisdictions. A lot of people may remember the facts of the Cyntoia Brown case in Tennessee. She was actually convicted. Even though she was able to claim self-defense, the jury did not credit that and she actually spent several years in prison under very similar circumstances to Chrystul Kizer. She had been trafficked by an individual and killed him and prosecutors alleged that she killed him and murdered him, but she was granted clemency.

This is an important case because it does represent, it is essentially saying that you don't have to be in imminent danger in order to avail yourself of the defense in a homicide case, but I think it's also really important that it does take into account the nuances and the subjective things about these, again, child victims who are fearing they're very powerful aggressors. Again, having the ability to use this defense, all this means is that the jury will hear evidence of that power dynamic, of her fear, and the jury will decide if that was reasonable enough to allow her to avail herself of that defense. [crosstalk]

Brian Lehrer: I don't want to go further down this rabbit hole but a lot of listeners might not even realize that a court gets to decide what kind of defense an accused criminal gets to use. You can't just come into court and decide what kind of defense you're going to use, and the jury will decide whether they buy it or not. The court's actually going to decide if she can use an affirmative defense defense, or if she has to make her case in some other way.

Listeners, does anyone have a question or an opinion about the Chrystul Kizer case or the issues of self-defense or affirmative defense that it raises, either in its own right or in comparison to Kyle Rittenhouse, that other 17-year-old in Kenosha, Wisconsin? That's why it's getting so much more publicity now because of the Rittenhouse acquittal. 212-433-WNYC, 212-433-9692, or tweet your question or comment @BrianLehrer for our guests, Jessica Contrera who is writing about the Chrystul Kizer case as a Washington Post correspondent, and professor Kami Chavis, Director of the Criminal Justice Program at the Wake Forest University School of Law.

By the way, Professor just mentioned Cyntoia Brown's name, maybe that rings a bell to some of you but you don't know why, and maybe it was because celebrities like Kim Kardashian and Rihanna had rallied for her release. Jessica, before we get back into the case, politically or publicity-wise, how has the acquittal of that other 17-year-old in Kenosha, Kyle Rittenhouse, affected either the media attention? I would guess that it would not have come across our attention on this show, to be fair, even though I'm not proud of that, were it not for Kyle Rittenhouse. The media attention, or for that matter, the legal context right now.

Jessica Contrera: Yes. It's definitely been an interesting time. I first met Chrystul back in 2019 and have watched the varying waves of attention to her case. We saw one at first, back in the summer of 2020 after the death of George Floyd and the way that our country was talking about race and the criminal legal system. That was a time when bond funds that had been raised to free protestors were used to get Chrystul out of the Kenosha jail so she could wait for her hearings at home with her mom. Now we're seeing another wave because of these really crucial conversations around what self-defense looks like and how it might play out differently for a 17-year-old Black girl who didn't have anyone see what happened to her.

She was alone in that room with Randy Volar, and the question is do people trust her word of what happened, and what does the evidence show? I think it's important to note related to, you have been talking about Cyntoia Brown, Chrystul and Cyntoia are not the only young women who were being trafficked that this has happened to. There have been cases that we could find dating back to the 1990s where child sex trafficking victims were seen back in those times as, "Oh, she was a child prostitute and she was trying to rob him," things like that.

In recent years, after Cyntoia's case was reexamined, we're not only seeing other cases that have already been convicted reexamined, there are active cases playing out that look a lot like Chrystul's. Zephaniah Trevino in Texas, [unintelligible 00:17:48] in Pennsylvania, and a young male victim, Jordan Hampton in Texas as well. These issues, whether it's Kyle Rittenhouse bringing them up or another case like this, are really the next wave of discussion around what self-defense looks like.

Brian Lehrer: Professor Chavis, you were quoted in a New York Times story on Rittenhouse saying if we changed the race, the age, the victims, if we changed some of these dynamics, we could very well have had a different result. That of course was a hypothetical in that case, but certainly imaginable. How do you think race and gender might be coloring perceptions here as compared with Kyle Rittenhouse?

Professor Chavis: Yes. What's very interesting, and my quote really goes back to if you look at our entire criminal justice system, whether it's who's stopped by police or investigated, who's searched when they're stopped, who is ultimately arrested, what they're charged with, whether they're found guilty, what sentence they receive, we see racial disparities all throughout the criminal justice system. This is just a very real-time example, and as Jessica said, it's one of many.

I think that the idea, again, Jessica mentioned the child sex trafficking victims being viewed as prostitutes when we know that no one under the age of 18 could consent legally to being in that situation. The adultification of Black children, I think is also an issue here. Kyle Rittenhouse, we saw lots of references to him being baby-faced and infantilized almost, but here you have this 17-year-old child, she's a child. We've daughters 17 years old. She's again viewed as this person who wanted to rob her victim when actually he was alleged to have attacked her.

The other thing out this your other guest mentioned is the videotape evidence we know how important that type of transparency has been just in terms of showing what really happens to many Black men at the hands of police officers and so it is unfortunate that there is no other evidence here and it will have to be Chrystul's word. The jurors of course in the Rittenhouse case were able to sympathize with him and so you only can hope that jurors will be able to put themselves in Chrystul's shoes.

Brian Lehrer: Are there other, Jessica, high profile-- I mentioned with Cyntoia Brown that their high profile celebrities like Kim Kardashian and Rihanna, who had taken on that case and helped bring publicity to it. Was there anything like that, anyone like that in the Chrystul Kizer case before Kyle Rittenhouse or now after?

Jessica Contrera: Yes, thank you for asking that. After our initial investigation was published, we did see a lot of the founders of the Me Too movement, Tarana Burke especially, come out in support of Chrystul, Alyssa Milano tweeting about her, and also Cyntoia Brown herself writing an op-ed about Chrystul's case and comparing it to her own. What all of those people pointed to was something that was just mentioned, which was the concept of Black girls being seen as older and being seen as more sexually promiscuous wrongly by adults.

That's really important in this case, and I just want to point out this man who was killed was filming his sexual abuse of Chrystul but he was also filming sexual abuse of other underage Black girls. Three months before he was killed, a 15-year-old girl, another young Black girl ran from his home, called 911, said she'd been drugged, that he was going to kill her, and that led to a police raid of this man's house. What they found in that police raid, which we only knew because of documents that we were able to obtain, was that there were hundreds of videos of child abuse in the home, including multiple videos that Randy Volar had made himself.

Police arrested him and they released him the very same day, and weeks went by in which they say they were reviewing evidence, the prosecutors said, we had to figure out how old these people on these videos were, we didn't know, but when you actually look at the police documents, it's very clear that they believed that the people in the videos were actually children 14, 15, maybe even as young as 12 years old.

Brian Lehrer: By the way listeners, as an aside, Rihanna happens to be in the news for another reason today that we're going to do a separate segment on later in the show, and that is, she was named a national hero of Barbados. Now, we're not really going to talk about Rihanna very much when we get to the Barbados segment but for those of you who don't know, in a certain respect, Barbados declared its independence yesterday. It fired Queen Elizabeth and said we are not a Commonwealth in the British Empire anymore, we are now a republic.

The Republic of Barbados got established in the last day, the Prime Minister, among various things that she did, named Rihanna a national hero in the last day, and we are going to talk about Barbados becoming a republic, not many days in our lives is a new nation, in a certain respect, born so we're going to talk about that later. Just thought you would like to know. As we continue on the Chrystul Kizer case, let's take a phone call. Kim in Somerset, New Jersey, you're on WNYC. Kim, thank you for calling in.

Kim: Hi, can you hear me?

Brian Lehrer: I can hear you just fine, yes.

Kim: What the guest was just talking about actually really reminded me of the R. Kelly case, but I'm not really going to talk about that. What I wanted to speak about is if you're in an abusive relationship, even if you're healthy and sane before you get into it, the longer you're around the person that's abusing you, and manipulating you, the more fearful you get. The fear maybe is not proportionate, but the fear is real. My heart goes out to Chrystul and thankfully, the abusive relationship that I was in was not sexually abusive, I can't imagine if it was, but I can't imagine what she went through.

I think she must have felt so unsafe in that situation and she had to do whatever she thought was correct for her to feel safe again because it really wears you down. I think it's incredible that she had the strength to do that because sometimes you really don't.

Brian Lehrer: Praise to you for having the strength to call up and say what you just said about your own situation. Do you think there are ways that others, and unfortunately, there are so many who have been in abusive relationships, can rally for, and I know it's happening to some degree, but just from your own thinking, Kim, can rally in support of Chrystul Kizer?

Kim: I think the media is going to try to twist her and maybe feel like, oh, why was she or just maybe she was in a situation voluntarily, which we know she wasn't and I think it's just important to validate their sense of reality, because so often, the abuser takes your sense of reality away and you start questioning yourself, is what I'm feeling valid? Am I actually the bad person in this situation? I really hope that everyone can support her now that she's in a better place and she's feeling stronger and she's fighting this case.

Brian Lehrer: Kim thank you again for that and for your contribution and your courage in calling up with that. Jessica Contrera from The Washington Post, do you want to follow up on what Kim just said about the media aspects and maybe how you consider your own reporting as you follow this case?

Jessica Contrera: I think it's really important to note that the media has played a role for a long time in stereotyping young Black girls, and I hope that that is changing. I think that part of Chrystul's bravery in this situation, was the choice to speak up about what was happening to her. Certainly, she could put her head down, and hope for the best. It takes a certain vulnerability to talk to a reporter about the most horrific days of your life.

I have always been very grateful to her and to her mom, Devore, and to the people who are around her at that time for trusting me with this story and opening up because now that she did that, so many people know about what happened to her, so many other defense attorneys across the country can take a second look at the cases that they have and say, maybe there's something more going on here. Maybe it's judges saying, oh, maybe we need to do a training on sex trafficking. Maybe we need to understand this issue better. Her choice in the midst of facing life in prison to speak up I think has an impact that she or I will never know the full extent of.

Brian Lehrer: Looks like Leisia in Mount Kisco has a question for Law Professor Kami Chavis. Lesia, you're on WNYC. First of all, am I saying your name right?

Leisia: You are. Thank you, Brian. I'm a big fan. I've been listening for years.

Brian Lehrer: Thank you.

Leisia: Thank you. My question was about the law that you referenced in Wisconsin, not self-defense, but the other one that's specifically for victims of sex trafficking. I wanted to understand a little bit more about what the burden of proof is that a victim needs to show before they're even allowed to use that as a defense. It seems that if you're a victim of sex trafficking, and as we heard from the caller just before, it's not easy to come forward. What on earth do you have to prove for a judge to say you're allowed to use that defense? It seems overly burdensome. Thank you. I'll I'll take my answer off the air. Thanks.

Brian Lehrer: Thank you. Thank you very much. Again, that defense known as affirmative defense, slightly different from traditional self-defense. Professor Chavis.

Professor Chavis: Yes. This also reminds me, I want to go back to the first caller and why this defense is so important, or the ability to have this defense because once you're allowed, once you're granted this defense, there will be expert testimony to some of the psychological, whether it's the cycle of abuse that's happened, all of that expert testimony will be before the jury and they can decide. That is why it's so important to have the ability for Chrystul to have this case. I'm not certain particular in Wisconsin what a judge would need to determine, but you certainly would have to allege certain facts that would substantiate you as having been a victim of child trafficking, and then the circumstances related to that and your fear.

Brian Lehrer: We are at the end of our scheduled time, but let me extend just a little bit because Jessica, I know you wrote in The Washington Post about different child sex trafficking laws in different states, and you used Maryland as an example of a state that has a weak law, so what's the range here?

Jessica Contrera: It's a really great question. To answer the previous question, Chrystul has to show that her crime was a "direct result" of the trafficking she experienced, and that's important language, and you can look at the language of other states to see what theirs is. I did a story earlier in the year about a young woman named Alexis Martin in Ohio. In Ohio, the conversation is really around safe harbor which is another concept saying that child sex trafficking victims have some kind of a defense for crimes that they commit. The real question at hand is what crimes.

In Wisconsin, it's written broadly. It says any offense, that's what's at debate. In some states, you have certain crimes, for example, theft or running away, or possessing drugs. Those are included in your defense because they say that so often victims of sex trafficking are forced to do crimes by their abuser or forced to do crimes in order to escape their abuser.

In a state like Maryland, there is no safe Harbor which what that means is that child victims of sex trafficking who can be being forced into being sold for sex can also be arrested and charged with prostitution even though they are children. What's going on in Maryland right now and other states is saying, at the bare minimum, we need to not charge children with prostitution.

Brian Lehrer: Let me take one more call comparing the Rittenhouse case, 17-year-old with a gun, to the Chrystul Kizer case, 17-year-old with a gun. Dan in Howell, you're on WNYC. Hello, Dan.

Dan: Hi. I was just going to point out the weird sexism of that very fact. Apparently, we allow a 17-year-old boy with a gun to wield it, but a 17-year-old girl with a vagina we criminalize for how she wants to proceed. It's just crazy.

Brian Lehrer: Thank you. Well, Professor Chavis, in the murderers of Ahmaud Arbery case, the prosecutor did bring up the specter of racism at one point. Can they bring up the specter of misogyny here?

Professor Chavis: I think it's interesting because you're going to have a jury, and you're going to really need to connect with the jury. Bringing in facts from other cases is not typically something that you would do as a prosecutor or a defense attorney. I think there are ways that they could make this relevant and really showing Chrystul as the vulnerable 17-year-old child that she was and evidence this evidence and it certainly should be admissible I would think, the videotapes and the abuse of the other underaged children, again, as Jessica said, to show what type of man this was, any violence that he used in order to show that her acts were a direct result of being trafficked by him.

Brian Lehrer: Jessica, last question, your story mentioned that not only did Chrystul bring a gun to Volar's house, but she bragged to someone that she would soon own a BMW, which Volar had and she then drove away in, and she had texted someone that she's going to do it. Was this premeditated, and to that extent, does it complicate getting an affirmative defense accepted as a path she can go down in court?

Jessica Contrera: Yes. Those are two of the most important parts of the prosecutor's argument in this case. They have said throughout that they can show that they believe Chrystul did premeditate this murder. For them, that precludes to her argument of self-defense. I think we had a discussion earlier in the show about domestic violence. For a long time, the understanding of domestic violence was not advanced enough. We didn't think that women could be raped by their own husbands. We didn't think that if a woman defended herself in a situation when she wasn't in immediate danger, that that was permissible under the law.

The view of domestic violence has developed and changed. The question here is, has the view of child sex trafficking and the understanding of what that issue is all about and the unique trauma that it presents, how far has that developed, what crimes is the law willing to permit or willing to at least broaden the scope of evidence that is introduced when it gets brought up for child sex trafficking victims because we know that Chrystul's case while very powerful is not the only one

Brian Lehrer: Jessica Contrera, Washington Post correspondent writing about the Chrystul Kizer case, and Kami Chavis, Director of the Criminal Justice Program at the Wake Forest University School of Law. Thank you both so much for joining us today.

Jessica Contrera: Thank you.

Professor Chavis: Thank you.

Brian Lehrer: Brian Lehrer on WNYC, much more to come.

Copyright © 2021 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.