Madison Smith will be just a few months out of college when her story is heard this fall by a most unusual Kansas grand jury – one she convened.
For three years, the local prosecutor has resolutely refused to make her case: that what began as consensual sex in a college dorm room became a rape, and that she was unable to say “stop” because her classmate was strangling her.
But Smith invoked a vestige of frontier justice that allows citizens in Kansas to summon a grand jury when they think prosecutors are neglecting to bring charges in a crime. The law, dating to the 1800s, was originally used to go after saloonkeepers when authorities ignored violations of statewide prohibition. The 22-year-old graduate is believed to be the first to convene a citizen grand jury after a prosecutor declined to pursue a sex-crime charge.
“It took me a while to find my voice,” she said recently. “But I have found it, and I am going to use it.”
Statistics show that most sex crimes don’t result in charges. Victim advocates blame cultural issues, halfhearted investigations and the broad discretionary power of prosecutors. “This is a problem across the nation,” said Kathy Ray of the Kansas Coalition Against Sexual and Domestic Violence. “There are gaps throughout the system.”
Unlike Smith, most victims have no way to seek justice when they feel a blind eye is being turned toward a crime. Only five other states, all in the Great Plains or the West, have similar laws still on the books. The Kansas statute requires an individual to gather a certain number of signatures of support, which forced Smith to relive her trauma over and over in conversations with strangers.
She did so in a hair salon parking lot, where she and her parents set up a tent to greet passersby.
By then, court records and recordings of conversations reveal, their disagreement with McPherson County Attorney Gregory Benefiel had turned highly contentious.
“The one person who I believed was supposed to fight for the victim on the legal side has pushed me aside, stalling, and waiting for me to give up,” Smith wrote in one statement to the court. “This is a common tactic used by defense attorneys, but now the prosecution. I won’t ever give up. Ever.”
Benefiel initially refused to press any charges. He later reversed course, seeking and winning a conviction on felony aggravated battery, the most he thought he could prove in the February 2018 attack.
Yet Smith has never considered it as anything other than rape.
It happened at Bethany College, a small Christian liberal arts school in Lindsborg, an hour north of Wichita. She had bumped into a friend, Jared Stolzenburg, while doing laundry in a dorm. They went to his room, talked some, started kissing. They progressed to sex – by mutual consent, she acknowledges.
Almost immediately, Stolzenburg began slapping her face and strangling her while continuing intercourse, according to court records.
“I tried to initially pull his hands off of my throat, and he squeezed harder every time,” Smith recounted in one court hearing. “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.”
She had told investigators Stolzenburg forced her to perform oral sex and tried to penetrate her anally. “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 continued in court.
The day after the assault, the college freshman stood in the driveway of her parents’ house three blocks from campus. “I was raped last night,” she told them, tugging down the collar on her hoodie to reveal a necklace of purple bruises.
Her parents called police and drove her to a nearby hospital for a forensic exam. The report noted the bruising and abrasion on her neck, as well as bruising inside her mouth.
Five weeks later, the family arrived for their first meeting with the prosecutor. Benefiel asked to speak to Madison 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,” she recalled in one court hearing. “He then told me he was not filing charges.”
She walked out of his office in tears.
In subsequent meetings with the family, which they recorded, the county attorney further explained his position. Because the sex had begun consensually, he said, the issue was whether Stolzenburg 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,” Benefiel continued. “When we have that failure in that communication, then everything from a legal analysis, everything remains consensual.”
He made the same point during another conversation, asserting a “requirement of affirmative withdrawal” of consent.
“Me taking his hands off of my throat is affirmative enough,” Smith shot back. “I couldn’t speak. How can I say ‘no’ if I can’t speak, if I can’t breathe?”
A former Minnesota prosecutor reviewed Kansas law for the Smiths and concluded that the attack qualified for 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,” said Julie Germann, who specialized in sexual assault cases. “I would not have a hard time taking that case to a jury at all.”
Still, the Smiths feared they were out of options until Madison’s mother happened to hear a podcast with a retired Utah detective talking about prosecutors who mishandle or undercharge sex-crime cases. Mandy Smith contacted Justin Boardman, who now trains police and prosecutors to investigate sex crimes without retraumatizing victims. He became an unpaid adviser.
On Zoom with the family last year, Boardman came up with their Hail Mary: The 1887 Kansas law allowing citizens to go around reluctant prosecutors to seek an indictment on their own.
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.
To convene the grand jury, the Smiths needed 329 voter signatures – 2 percent of the county’s vote total in the last gubernatorial election, plus 100 – and to have a court approve the legal grounds.
They drove last May to that Lindsborg parking lot, tied some balloons on their tent and began asking people to sign a petition tersely setting out the facts, including that the county prosecutor refused to file rape charges “because Madison didn’t verbally revoke consent while being strangled.”
“It was very hard to keep retelling my story to stranger after stranger,” she said this month, “but at the same time I knew that what I was doing was going to make a difference one way or another.”
The first petition was rejected on a technicality, forcing the family to stage another signature drive. A three-judge panel approved the next effort, though the coronavirus pandemic delayed scheduling of the grand jury.
In the meantime, the county attorney had charged Stolzenburg with aggravated battery. He pleaded guilty and received two years’ probation, an outcome Madison Smith called inadequate and “bittersweet.”
“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.”
Stolzenburg, who was expelled from Bethany, could not be reached for comment. According to records, a court services worker reported that he said he felt sorry for Smith but didn’t think he had done anything wrong.
His attorney did not reply to requests to discuss the case. The lawyer contended in court that a citizen grand jury would expose his client to double jeopardy, or being tried twice for the same crime, which isn’t allowed in American jurisprudence.
Benefiel said that issue still looms: “It is a matter that will have to be determined at the front end of any indictment.”
At a hearing Tuesday, a judge set Sept. 29 for the grand jury to begin.
By law, Mandy Smith will talk first because her name is on the petition. She will stand there as a different person from the mom who paid little attention to a discussion of sexual assault during freshman orientation, sure that her only daughter was too fiery and strong-willed to ever become a victim.
“I just hope I can reach members of the community,” she said last week. She plans to ask the grand jury to replace the county attorney with a special prosecutor for the proceedings.
The young woman at the center of the case knows that her grand jury may not return the indictment she wants. Even so, she expects that her advocacy will raise awareness of inadequate charges in sex crimes and appropriate ways to handle victims of sexual trauma.
“Win or lose, we swung the bat, and we swung it hard,” said Smith, who grew up on the softball field. “We tried everything we could, and we exhausted all our resources. I’ve got to know I tried.”
The past three years have reshaped her family in unexpected ways.
After aggressively pressing a Title IX sex discrimination claim for her daughter at Bethany College, Mandy Smith left accounting and was hired by the school to be trained as a Title IX coordinator.
Madison Smith remained at Bethany despite what had happened, though she moved out of her dorm and lived at home. She graduated this month with a bachelor’s degree in biology and will be married in June on her parent’s wedding anniversary.
She had long planned to go to graduate school in nursing. Her experience in the hospital on that winter’s night – with nurses who made her feel believed – sharpened her focus. She now wants to earn accreditation as a sexual assault nurse examiner.
“I didn’t let this define me in a negative way,” she said. “I let it jump-start who I wanted to be.”