MISSION, Kan. (AP) — When prosecutors declined to press rape
charges against a Kansas
woman who claims consensual sex with a friend in his college dorm room turned into a terrifying assault, she called a citizen grand jury, citing a 134-year-old state law.
Madison Smith, 22, gathered the hundreds of signatures required to appoint the grand jury after the county prosecutor settled 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 empowered by the #MeToo movement to share their stories publicly.
“This happens nationwide, worldwide, that victims and survivors are minimized by prosecutors who do not believe them,” she said, adding, “And that is not OK because rape culture is so prevalent, and we need to get rid of it, and one way to do that is to get our stories out there.”
The 1887 law was rarely used until anti-abortion activists used 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
However, according to Kathy Ray of the Kansas Coalition Against Sexual and Domestic Violence
, Smith's case, which will be heard in September, is believed to be the first time it has been used by someone claiming sexual assault
“This case has a lot of issues within the criminal justice system, and sometimes victims feel like they have no choice but to go public,” she explained.
Smith had to stand in a parking lot telling her story to strangers over and over again to collect hundreds of signatures, and then do it all over 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 started speaking, hugging her and whispering into her ear so others nearby couldn't hear that they, too, had been sexually assaulted.
“They were very grateful that I was fighting, just fighting the justice system and trying to make a difference in the world because they were too afraid to fight back,” she recalled.
Smith, on the other hand, stated that she believed it was the only way she could seek justice for the February 2018 attack
In a recorded conversation, McPherson County Attorney Gregory Benefiel told Smith's mother that the case was difficult because Smith did not verbally withdraw consent
during the encounter, which Smith explained was due to him choking her.
“I think anyone can see that if you can't breathe, you can't speak,” she explained.
Smith said the attack occurred after she ran into Stolzenburg while doing laundry and returned to his room at Bethany College, where they had sex, which was initially consensual, but then he began slapping and strangling her, leaving her gasping for air, during Stolzenburg's sentencing hearing in August 2020.
“I really thought he was going to kill me, and the only way I was going to leave that room was in a body
bag,” Smith, who is currently working at a nursing home before starting nursing school in the fall, said.
“He would strangle me for 20 or 30 seconds at a time, and I'd start to lose consciousness,” she explained.
According to Stolzenburg's Bethany College transcript, he was administratively withdrawn in March 2018, according to Amie Bauer, the school's general counsel, and the college had no further comment.
During the sentencing hearing, defense attorney Brent Boyer stated 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 stated that Boyer did not participate in media
interviews and hung up. Stolzenburg does not have a listed phone number and did not respond immediately to a message on Facebook
In an interview with The Associated Press
, Benefiel said that sex crimes cases are “extremely difficult 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 that he and Smith both wanted the same thing — “truth and justice.”
“There is disagreement about how it should look in this case, but I believe everyone has the same goals,” he said.
However, Julie Germann, a former Minnesota
prosecutor who reviewed Kansas law for the Smiths and determined that the attack qualified for a rape charge, stated that prosecutors must "look at the totality of the circumstances."
“This idea that because she consented, anything that happens after that is acceptable is a very dangerous precedent to set,” said Germann, a sexual assault consultant and educator.
According to Justin Boardman, who trains
cops and prosecutors to investigate sex crimes, defense attorneys frequently try to argue that the victim consented not just to sex but to rough sex, but in that lifestyle
, there are usually a lot of check-ins and discussions before sex begins.
“If it's just a surprise, it's an assault,” he explained.
During the sentencing hearing, a court services worker said Stolzenburg told her he should have communicated better and that he "feels sorry for the victim."