A bipartisan bill in the Wisconsin legislature would impose mandatory minimum sentences on people convicted of human trafficking. Advocates worry the penalty could be applied to victims.Close up shot of fingerprint paper | Getty Images

A bill that would require judges to sentence people convicted of human trafficking to at least 10 years in prison, or at least 15 years for trafficking a child, is advancing through the Wisconsin Legislature.  

Human trafficking involves the use of force, fraud or coercion for labor, services or commercial sex acts. Trafficking of a child includes knowingly attempting to recruit a child for commercial sex acts. The bill would also increase the maximum prison time a person can receive for trafficking. 

Sen. Van Wanggaard (R-Racine) wrote that the bill “will continue to put a dent in human trafficking in Wisconsin.” Rep. Jerry O’Connor (R-Fond Du Lac) listed five cases in which, he wrote, a person convicted of sex trafficking received between six and eight years in prison. It appeared that the cases took place in states other than Wisconsin. 

“AB 265 ensures that these soft-on-trafficking policies never happen in Wisconsin,” O’Connor wrote. He argued that the bill’s mandatory minimums ensure adequate punishment and prevent offenders from doing further harm. 

The criminal justice advocacy group Ex-Incarcerated People Organizing (EXPO) and the president of the Wisconsin Justice Initiative oppose the mandatory minimums, arguing that there is a lack of evidence they will be effective at reducing trafficking. EXPO argues in an email to the Wisconsin Examiner that mandatory minimums risk unintended harmful consequences and resources are better spent on areas such as prevention and victim services.  

The LOTUS Legal Clinic in Milwaukee, which works with survivors of human trafficking, expressed concern in a written comment submitted on the Senate version of the bill in September. Executive Director Erika Petty wrote that many of LOTUS’s clients might support the mandatory minimum in principle, but expressed concern about unintended consequences for trafficking victims. 

“Traffickers commonly shield themselves from criminal accountability by forcing their victims — often at a very young age — to post ads, recruit new trafficking victims, and facilitate encounters,” Petty wrote in her comment, which was brought up in the Senate Committee on Judiciary and Public Safety. “Thus, the victims themselves become vulnerable to criminal prosecution for human trafficking.”

The bill’s mandatory minimums would apply if a person is convicted of human or child trafficking in adult court, Amber Otis, senior staff attorney with the Wisconsin Legislative Council, wrote in a message to lawmakers on the committee.

Petty argued that under the bill, a victim forced to participate in trafficking of others would fall under the mandatory minimum, just like their trafficker. She provided language for lawmakers to consider; if added to the bill, it would create exceptions to the mandatory minimums that would give judges the ability to hand down lighter sentences or probation to people who offer evidence that their offense is the direct result of a violation of the trafficking statutes.

A 2017 Northwestern University Law Review article made a suggestion in the same vein as Petty’s, proposing that Congress create a “safety valve” for “lead prostitutes,” or “bottoms,” who are both victims and perpetrators of trafficking, to allow them to receive a sentence lighter than a mandatory minimum if certain criteria were met. An article in Anti-Trafficking Review describes a case where a woman named Keosha Jones was both perpetrator and victim of sex trafficking.

Petty wrote that LOTUS attorneys currently had multiple cases involving convicted survivors. The clinic doesn’t handle criminal defense, but LOTUS can work with survivors on their rights as crime victims and see if they can alleviate a survivor’s criminal record, Petty told the Examiner in an interview. A survivor may have a criminal record as a result of trafficking that creates barriers to gainful employment and safe housing. 

While the bill was introduced by Republicans, the Assembly Committee on Criminal Justice and Public Safety approved it unanimously, and Minority Caucus Chair Lisa Subeck (D-Madison) and Rep. Shelia Stubbs (D-Madison) have been added as coauthors. It has since passed the Assembly. 

The Senate Committee on Judiciary and Public Safety approved the Senate bill along party lines, with the committee’s three Democrats voting against. 

People convicted of benefiting from human trafficking or receiving compensation from the earnings of debt bondage, the prostitution of others or a commercial sex act would also receive a mandatory minimum sentence of 10 years, or 15 years for benefiting from child trafficking. 

The bill would also increase the amount of prison time a judge could hand down for trafficking and give prosecutors a longer window to charge someone with human trafficking. 

Victims have a defense in court, but concerns remain

The Examiner reached out to Sen. Wanggaard in September about LOTUS’s comment and suggested amendment. Wanggaard aide Scott Kelly said that “we do not believe an amendment is necessary.” 

If a trafficking victim commits a crime as a “direct result” of a violation of human trafficking law, the victim can use an affirmative defense in court. Kelly referenced the affirmative defense and the 2022 Wisconsin Supreme Court ruling in State v. Kizer, which involved a woman who killed a man prosecutors admitted had sexually abused her. 

The court held 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. Other events or considerations must not have played a significant role in causing the offense. 

If a victim is charged and convicted of trafficking, that would mean the victim did not successfully assert the defense, Otis wrote. This could occur if the prosecutor proved beyond a reasonable doubt that the defendant did not meet the elements of the defense. 

Even with the affirmative defense, Assistant State Public Defender Katie York of the Wisconsin State Public Defenders Office told the Examiner that she thinks the bill puts trafficking survivors at risk. 

York opposes the human trafficking mandatory minimum in general, and said it takes away the opportunity for prosecutors, defense attorneys and judges to evaluate each case based on individual circumstances. York said she thinks judges are well equipped to make decisions and she doesn’t believe that this area of the law needs more specific parameters. 

York said how well the defense can be used to protect a trafficking victim is “largely untested at this point.” 

Also, if there is a situation where a jury doesn’t think the defendant meets the “direct result” standard for the affirmative defense, the trafficking still might have been a contributing factor to the defendant’s involvement in the offense, York said. A judge could take that into account. 

“So they could be found guilty of trafficking, even if they tried the affirmative defense,” York said. “But, if the judge is looking at the full picture when they’re sentencing someone, which is what judges do, they would want to take into consideration how that person got involved in the trafficking.”

If a person got involved in trafficking because they were originally trafficked themselves, that would be an important factor for the sentencing judge, York said. 

A person might have some culpability, without having as much culpability as whoever drew them in or forced them into human trafficking, said Sarah Schmeiser, president of the Wisconsin Association of Criminal Defense Lawyers. 

Schmeiser said prosecutors use mandatory minimums to force plea deals, as someone charged with a crime that carries a mandatory minimum sentence has an incentive to plead guilty to a lower charge with a lower penalty instead of risking the mandatory minimum sentence at trial. 

York thinks traffickers could use the mandatory minimum as a tool to further coerce their victims.

“So if… they say, ‘Hey, I need you to post this on Backpage,’ or ‘I need you to talk to this girl for me,’ or whatever it is to bring them into the trafficking, they’re putting that person at risk of criminal liability,” York said. “And then the trafficker can say, ‘And, now you better be careful and listen to what I have to say, because otherwise, you’re going to get in trouble with law enforcement and you’re going to go to prison for 10 years,’ or whatever the mandatory minimum is.”

Increased penalties 

Under the bill, someone convicted of committing or benefitting from human trafficking would be guilty of a Class C felony, which carries up to 25 years in prison. Receiving compensation from the earnings of debt bondage, a prostitute or a commercial sex act would become a Class E felony, which carries up to 10 years in prison. The mandatory minimum of 10 years in prison would apply to all human trafficking offenses.

Committing or benefitting from child trafficking would become a Class B felony, which carries up to 40 years in prison. Child trafficking offenses would carry the 15-year mandatory minimum. 

More time to prosecute

The bill would also increase the statute of limitations for human trafficking from six years to 10 years, allowing more time for prosecution. During an Assembly hearing, Investigator Luke Johnson of the Racine County Sheriff’s Office said many human trafficking victims struggle to leave their traffickers. 

“It is very easy for victims to be trapped in a life for many years before having a chance to get out or feeling comfortable enough to disclose to law enforcement or anyone else,” Johnson said. 

Of the human trafficking charges filed under the state law between 2018 and 2023, so far 14 charges have led to convictions, according to Wisconsin Court System data. For trafficking of a child, so far, 32 charges have led to convictions. This does not represent the number of people convicted, as a person can be charged more than once in a case. Charges of benefiting from human or child trafficking were less frequent. 

The National Human Trafficking Hotline reports it has identified 1,117 cases of human trafficking in Wisconsin since 2007, with 2,212 victims identified in those cases. There were 445 allegations of child sex trafficking across Wisconsin in 2021.

“It is imperative to note that in this underworld of crime, there are far more cases that are not reported to law enforcement,” Rep. Jerry O’Connor wrote in a comment on the bill. 

Burden of proof 

Senators discussed LOTUS’s comment during a hearing of the Senate Committee on Judiciary and Public Safety in September, with Sen. Dora Drake (D-Milwaukee) raising concern about charging and criminalizing victims. 

Committee chair and Sen. Van Wanggaard said he thinks investigators understand that a person might be coerced to participate in human trafficking. 

Otis’s email to the Senate committee noted that the district attorney has discretion over whether and how to charge someone with trafficking depending on the situation. 

It’s difficult to prove whether someone is a victim of human trafficking, York said. She added that the victim may not identify as a victim of trafficking, and may view their trafficker as a boyfriend or someone they relied on. 

“It’s a challenge to kind of go back and unpack years worth of trauma and history to say, ‘OK, this is what originally happened, and this is how we got to where we are,” York said. 

At times, a plea deal may work out better for the individual than using the affirmative defense, York said, due to the mental toll the defendant would experience from going in front of a jury and speaking about what happened to them. A mandatory minimum limits the ability to negotiate for the client, she said. 

Erika Petty of LOTUS suggested there could be a situation where someone is not ready to identify as a victim of trafficking at the trial stage, but the situation changes by the time of sentencing. 

Petty referenced a law that allows a person convicted of prostitution to submit a motion for a court to overturn their conviction if certain criteria are met, including that the person was a victim of trafficking for the purposes of a commercial sex act. Human trafficking convictions aren’t covered. 

Potentially, a survivor could appeal a decision, Petty said, but “those are all very specific, and have to align with timing and whatever underlying issue wanted to be appealed.”

Whose expertise informed the bill? 

Shortly before the Assembly voted on the bill, Rep. Robert Wittke (R-Caledonia) said the bill came to lawmakers from Investigator Luke Johnson. Johnson’s comments state that from 2023 to earlier this year, he had an opportunity to serve on a task force specifically targeting human trafficking and internet crimes against children. 

“I urge any of you that have any trepidation with this bill to sit down with those in the front line that actually do this work and actually see this firsthand,” Wittke said. 

During the hearing in the Senate in September, Drake asked Wanggaard and Wittke if they had reached out to any groups or partners that work with victims of human trafficking outside of law enforcement for input. 

Wanggaard said he didn’t know of any group recently that they talked with specifically about this draft, but said that “we have [done so] for most of the content in this draft.” He said he thinks law enforcement was probably the most vocal “because they’re seeing the same people out there, continuing to reoffend.”

Wittke said he didn’t go to any other groups and that “this came specifically from sitting down with Inspector Johnson.” 

Sen. LaTonya Johnson (D-Milwaukee) expressed concern about “only talking to one entity, and that is law enforcement, and we know that not all of our law enforcement officers have the tools necessary to decipher who those victims are.” 

The bill received support from the Wisconsin Sheriffs and Deputy Sheriffs Association and other law enforcement groups, as well as the nonprofit United Migrant Opportunity Services (UMOS). UMOS’s Latina Resource Center operates the Wisconsin Regional Anti-Human Trafficking Program, which helps victims of labor and sex trafficking. UMOS did not respond to requests for comment. 

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