MISSION, Kan. -- A Kansas woman who alleges consensual sex with a friend in his college dorm room turned into a terrifying assault took matters into her own hands when prosecutors declined to bring rape charges. She called a citizen grand jury, relying on a 134-year-old state law.
Madison Smith, 22, collected the hundreds of signatures necessary to empanel the grand jury after the county prosecutor resolved the case by allowing Jared Stolzenburg to plead guilty to aggravated battery and receive two years’ probation.
Smith, who graduated earlier this month from Bethany College in Lindsborg, about 70 miles (112.65 kilometers) north of Wichita, is part of a generation of women emboldened to go public with their stories due to the #MeToo movement.
“This happens nationwide, worldwide that victims and survivors are minimized by the prosecutors who don’t believe them,” she said, “And that is not OK because rape culture is so prevalent, and we need to get rid of it, and one of the ways to do that is to get our stories out there.”
Kansas is one of six states that allow citizens to petition for grand juries. The 1887 law was rarely used until anti-abortion activists began using it to force grand jury investigations of abortion clinics. It has since been used to go after adult bookstores and to challenge former Kansas Secretary of State Kris Kobach’s right to appear as the Republican nominee for governor.
But Smith’s case, which will be considered in September, is believed to be the first time that someone claiming sexual assault has used it, said Kathy Ray of the Kansas Coalition Against Sexual and Domestic Violence.
“This case has a lot of issues within the criminal justice system, and sometimes victims feel they have no other choice but to go public,” she said.
The process of seeking a grand jury wasn't easy. Smith had to stand in a parking lot telling her story over and over again to strangers to collect hundreds of signatures, and then do it again when the first petition was rejected on a technicality.
Some of the strangers she approached snatched the pen from her hands just a few minutes after she began speaking, hugging her and whispering into her ear so others nearby couldn’t hear that they had been sexually assaulted in the past themselves.
“They were very thankful that I was fighting, just fighting the justice system and trying to make a change in the world because they were too scared to fight back,” she recalled.
But Smith said she felt it was the only way she could get justice for the February 2018 attack.
McPherson County Attorney Gregory Benefiel told Smith’s mother in a recorded conversation that the case was challenging because Smith didn’t verbally withdraw consent during the encounter. Smith said that's because he was choking her.
“I think anybody could realize that if you can’t breathe, you can’t speak," she said.
Smith said the attack happened after she ran into Stolzenburg while doing laundry and went back to his room at Bethany College, where they had sex. It initially was consensual, but then he began slapping and strangling her, leaving her gasping for air, Smith said during Stolzenburg’s sentencing hearing in August 2020.
“I really thought that he was going to kill me, and the only way I was going to leave that room was in a body bag,” said Smith, who is working at a nursing home before she begins to study nursing in the fall.
“He would strangle me for 20 or 30 seconds at a time, and I would begin to lose consciousness," she said.
Stolzenburg’s Bethany College transcript shows that he was administratively withdrawn in March 2018, said Amie Bauer, the school’s general counsel. She wrote that the college had no further comment.
Defense attorney Brent Boyer said during the sentencing hearing that Stolzenburg and his family had been threatened and that Stolzenburg wanted to “move forward.” A woman who answered the phone in Boyer’s office said that Boyer didn’t participate in media interviews and hung up. Stolzenburg doesn’t have a listed phone number and didn’t immediately respond to a message on Facebook.
Benefiel said in an interview with The Associated Press that sex crimes cases are “extremely challenging to prosecute” because jurors are looking “for that CSI type of evidence.” He said he couldn’t comment on the specifics of the case but added that he believed that he and Smith both wanted the same thing — “truth and justice.”
“There is a disagreement on what it looks like in this case, but I think everyone has the same goals,” he said.
But Julie Germann, a former Minnesota prosecutor who reviewed the Kansas law for the Smiths and determined that the attack qualified for a rape charge, said prosecutors need to “look at the totality of the circumstances.”
“This idea that because she consented then anything that follows is acceptable, that is a very dangerous precedent to set,” said Germann, who consults and teaches about sexual assault.
Justin Boardman, who trains police and prosecutors to investigate sex crimes, said defense attorneys often try to argue that the victim had consented not just to sex but to rough sex. However, in that lifestyle, there are typically a lot of check-ins and discussions before sex starts, he said.
“If it is just a surprise, it is assault,” he said.
A court services worker said during the sentencing hearing that Stolzenburg told her he should have communicated better and “does feel sorry for the victim.”