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Kansas college student convenes her own grand jury to bring charges against ‘rapist’

A Kansas college student convened her own grand jury after a prosecutor refused to bring charges against a man she accused of raping her. 

Madison Smith, a 22-year-old recent graduate of Bethany College in Lindsborg, has spent the past three years seeking to hold her attacker accountable for the rape she claims occurred in her dorm in February 2018.

Smith said she and her friend, Jared Stolzenburg, were having consensual sex when he suddenly began slapping and strangling her – leaving her unable to say ‘stop’. 

The next day Smith disclosed the rape to her parents, who immediately called police and took her to a hospital for an examination. 

But when she met with McPherson County Attorney Gregory Benefiel a few weeks later, the prosecutor was unconvinced that rape charges were warranted because Smith had not verbally withdrawn her consent to Stolzenburg. 

When Benefiel refused to take on the case, Smith took matters into her own hands – using a law passed over 200 years ago that allows citizens to summon a grand jury when they believe prosecutors are neglecting to bring charges.

Madison Smith, a 22-year-old recent graduate of Bethany College in Kansas, convened her own grand jury after a prosecutor refused to bring charges against a man she accused of rape

Smith shared her story in a Washington Post article published Wednesday. 

On the night of the attack the then-college freshman said she bumped into Stolzenburg in the laundry room of their dorm before going up to his room, where they started kissing. 

They started to have sex, after exchanging mutual consent, Smith said, when things took a turn and he started choking her.  

‘I tried to initially pull his hands off of my throat, and he squeezed harder every time,’ Smith said. 

‘He would strangle me for 20 to 30 seconds at a time, and I would begin to lose consciousness. When he would release his hands from my neck, the only thing I could do was gasp for air.’

Court records show Smith told investigators that Stolzenburg forced her to perform oral sex and tried to penetrate her anally as she feared for her life. 

‘I truly thought that he was going to kill me and the only way I was going to leave that room was in a body bag,’ she said.  

The following day Stolzenberg went to her parents’ home a few blocks from campus, revealed the bruises covering her neck and and told them: ‘I was raped last night.’  

The forensic exam she received at a hospital soon after noted the injuries to her neck, as well as bruising inside her mouth.  

Smith accused Jared Stolzenberg of raping her in his dorm room at Bethany College (pictured) in February 2018

Smith accused Jared Stolzenberg of raping her in his dorm room at Bethany College (pictured) in February 2018

Five weeks later Smith and her parents went in for a first meeting with Benefiel, who asked to speak with her alone.  

‘He told me that the rape I experienced wasn’t rape, it was immature sex because I didn’t verbally say no when I was being strangled,’ Smith claimed during a court hearing. 

‘He then told me he was not filing charges.’ 

Smith’s family recorded their subsequent meetings with Benefiel, where he explained that he couldn’t be sure if Stolzenberg had ‘any knowledge whatsoever of [Madison’s] withdrawal of consent’.

‘There isn’t anything that any of us felt adequately communicated to him that withdrawal of consent,’ the prosecutor said in one recording. 

‘When we have that failure in that communication, then everything from a legal analysis, everything remains consensual.’ 

Benefiel made the same point in a different recording, to which Smith replied: ‘Me taking his hands off of my throat is affirmative enough. I couldn’t speak. How can I say “no” if I can’t speak, if I can’t breathe?’

 The family went on to consult with Julie Germann, a former Minnesota prosecutor who specialized in sexual assault cases.

Germann concluded that the encounter justified a rape charge.  

‘I would contend that it is clear that if while strangling someone, they are pulling on your hands and gasping for breath, and they are crying, none of that sounds consensual to me,’ Germann told the Post. ‘I would not have a hard time taking that case to a jury at all.’

Smith is pictured with her mother, Mandy, in front of the McPherson County Court on May 10

Smith is pictured with her mother, Mandy, in front of the McPherson County Court on May 10

Frontier justice: The Kansas law passed in 1887 that allows citizens to convene grand juries  

Kansas is one of six states where the law allows citizens to impanel grand juries if they feel prosecutors are neglecting to bring reasonable charges.  

The law was implemented in 1887 when Kansas was under a statewide alcohol prohibition and was originally used to go after saloonkeepers when authorities ignored violations. 

‘As soon as the first grand jury met, every whisky joint, about seventy-five in the county, and every drug store selling without a license had disappeared,’ the Topeka Capital-Commonwealth wrote in an 1889 article.  

It’s unclear when the law fell out of fashion but it has recently regained traction from activists seeking to prosecute abortion providers and operators of adult bookstores, per the Washington Post. 

The other states that allow citizens to petition for a grand jury are New Mexico, North Dakota, Nebraska, Nevada and Oklahoma.   

However Kansas has the lowest threshold for signatures needed to call a grand jury, making it the easiest state to invoke the law. 

Petitioners are required to gather signatures equivalent to two percent of the county population in the last gubernatorial election, plus 100.   

Smith’s mother also sought advise from Justin Boardman, a retired detective who now runs a business training police and prosecutors to investigate sex crimes without retraumatizing victims.  

It was Boardman who came up with the idea to invoke the 1887 frontier law to convene a grand jury. 

The law was implemented when Kansas was under a statewide alcohol prohibition and was originally used to go after saloonkeepers when authorities ignored violations, according to the Post.   

Kansas is one of only five states with such a law, the others being New Mexico, North Dakota, Nebraska, Nevada and Oklahoma. 

For Smith, one of the hardest parts of using the law was meeting its requirement for signatures – which meant that she had to share her painfully personal story with countless strangers. 

The number of signatures needed varies from county to county as the law requires two percent of the county’s vote total in the last gubernatorial election, plus 100. 

Smith collected the 329 needed in her county by setting up a table in a parking lot and calling out to passersby. 

Her first petition was rejected on a technicality, so she went out again and collected 329 more. 

‘It was very hard to keep retelling my story to stranger after stranger, but at the same time I knew that what I was doing was going to make a difference one way or another,’ she said. 

While Smith went through that process Benefiel ultimately decided to charge Stolzenburg with aggravated battery – to which he pleaded guilty and received two years’ probation last August. 

Smith called inadequate and ‘bittersweet’ – insisting that she would not settle for anything less than a rape charge. 

‘Mr Benefiel, through all of this, has been the only person to tell me my rape was not rape, and I will not allow him to minimize what I survived,’ she said at Stolzenberg’s sentencing hearing. 

‘While I’m grateful that [Stolzenburg] didn’t completely get away with his crimes, I feel angry and re-victimized that he was not charged for the sexual side of this.’

Benefiel, however, maintains that justice was served.  

‘There is no doubt in my mind that Madison believes that she was a victim of rape,’ he told the Post on Monday. 

‘It was approached in that way, and then charging decisions were made based on the evidence that was available in the case. I don’t believe that we minimized this.’

Come September 29 the case will fall into the hands of the grand jury Smith fought to convene. 

She said regardless of the outcome she is proud of what she’s accomplished. 

‘Win or lose, we swung the bat, and we swung it hard,’ she said. ‘We tried everything we could, and we exhausted all our resources. I’ve got to know I tried.

‘It took me a while to find my voice. But I have found it, and I am going to use it.’      


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