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  • Joseph A. Del Russo, JD

Professor Del Russo Reacts: Wisconsin Human Trafficking Defense.

Wisconsin Human Trafficking Statute §940.302 “Affirmative Defense: A victim of Human Trafficking has an affirmative defense for any crime he or she committed as a direct result of the trafficking without regard to whether anyone was prosecuted or convicted for trafficking.”

There are scores of reasons why in a civilized society the legal profession endures. Two fundamental reasons that attorneys are indispensable:

First, words are inherently imprecise. The language that forms any rule is always subject to ambiguity, confusion or just plain error.

Second, legislatures are imperfect bodies and despite their best efforts, they often cannot contemplate the outcome variables of words they codify.

Nevertheless, the Wisconsin legislature should have seen this coming. Perhaps they did. Either way this is arguably not a model of legislation.  There are a number of ways to respect the predicament of human trafficking survivors in criminal prosecutions, minimizing their culpability without this almost “free pass“ defense. 

While the statute does not actually give the accused a “free pass” if they can prove human trafficking, the potential to demonstrate simply that there was a “direct connection” between the exploitation and the woman’s crime, keeps the defense attorney in the game. And that is a really big deal for the accused. Absent an appellate reversal the calculus of this prosecution is irrevocably altered.

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