A recent college graduate is using an archaic 19th-century law as the ultimate fuck you to the prosecutor who refused to charge her alleged rapist with sexual assault.
Madison Smith, 22, says she was assaulted by a classmate in a Bethany College dorm room in 2018. What started as consensual sex turned into rape, her alleged attacker strangling her in the process and forcing her in and out of consciousness.
For three years, Smith has tried to get the local County Attorney, Greg Benefiel, to charge Jared Stolzenburg with sexual assault charges. But Benefiel referred to Smith’s ordeal as nothing more than “immature sex” and refused to file sexual assault charges because Smith failed to “verbally revoke consent.”
It’s pretty hard to do much of anything verbal when you’re being choked, a point Smith made in a meeting with Benefiel. But he held firm. In 2020, Stolzenburg was served two-years of probation after pleading guilty to a battery charge, a cold comfort for Smith.
From the Washington Post:
“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 the sentencing hearing last August. “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.”
In an interview Monday, Benefiel said justice was served by the conviction.
“There is no doubt in my mind that Madison believes that she was a victim of rape,” he said. “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.”
But neither Smith nor her family were willing to let this go. One day, Smith’s mother was listening to a podcast featuring an interview with Justin Boardman, a retired Utah detective currently teaching law enforcement and prosecutors how to handle sexual assault cases with care. He was discussing prosecutors who mishandle sex crimes, an issue that hit close to home. After contacting Boardman, he became the family’s probono advisor, and found a brilliant roundabout way to seek justice: A 1887 Kansas law that allows citizens to seek an indictment while bypassing stubborn prosecutors. Kansas is one of only six states to allow citizens to petition for a grand jury.
The way the law has been used, however, is admittedly controversial. From the Washington Post:
A state appeals court looking into its origins cited contemporary newspaper reports saying it was intended to aid citizens frustrated with prosecutors who refused to enforce temperance laws. It was quickly successful, according to an 1889 story in the Topeka Capital-Commonwealth: “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 long-dormant statute had been dusted off in this century by activists aiming to prosecute abortion providers and operators of adult bookstores.
“Kansas has the lowest threshold for bringing one of these petitions, so it makes it easy for someone who has an agenda to bring one,” said Marissa Hotujac, a Kansas attorney who as a law student published a legal journal article on citizen grand juries.
But Smith isn’t a bible thumper or an anti-abortion activist, she’s a woman whose alleged sexual assault was dismissed as bad sex. While the law may have been used for regressive means in the past, there’s nothing wrong with Smith taking advantage of the law to right a wrong.
Last August, The Kansan reported that Smith “can call a grand jury after collecting signatures equivalent to 2% of votes cast in a county in the last gubernatorial election, plus 100.” In other words, she needed 329 signatures; she got 329. One month later, the Ninth District Court of McPherson County approved Smith’s petition for a grand jury. She’ll have her day in court on September 29, 2021.
Whether the grand jury will actually indict is up in the air, but Smith has laid the groundwork for other survivors to use whatever legal means at their disposal to pursue something that resembles justice.