Rape victim convenes her own grand jury after prosecutors refuse to take up case

Attorney refused to bring rape charges as she couldn’t say ‘stop’

File US Supreme Court in Washington, DC. The woman used 19th century law to fight her case (AFP via Getty Images)

A Kansas rape survivor has invoked a 19th-century law to convene her own grand jury after prosecutors refused to pursue a sex-crime charge for three years because she did not withdraw her consent verbally.

Madison Smith, a 22-year-old, recent graduate of Bethany College in Lindsborg, has alleged she was raped by her classmate in a dorm room in 2018. She said the consensual sex with her friend, Jared Stolzenburg, turned into an assault when he started strangling her, making her unable to say “stop.”

The local prosecutors refused to take her case for three years as they were unconvinced that it amounted to rape charges as she did not withdraw her consent verbally during the act.

She has invoked the 1887 frontier law to convene a grand jury that requires a certain number of signatures of support. She told the Washington Post that it was the hardest part as it meant narrating the story to the countless strangers to gather signs.

The law that dates back to the19th century is only applicable in five US states. She came up with the idea after her mother took advice from retired detective Justin Boardman.

“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,” Ms Smith said

She collected almost 329 signatures by setting up a tent along with her parents in the parking lot of her hair salon.

Ms Smith said she met her attacker in the laundry room of their dorm. The two then went to his dorm room where they started getting intimate. At first it was with mutual consent but he soon started choking her. The accused, Mr Stolzenburg started slapping her face and strangling her while forcing himself on her.

“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 recounted saying in a court hearing.

“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 told the court.

The next day she went to her parents’ home and told them she was “raped last night.” She had bruises on her neck from strangling.

When her parents met McPherson County Attorney Gregory Benefiel, he asked to speak to her alone and said it was not rape.

“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,” Ms Smith said. He refused to file the charges.

Ms Smith’s first petition was rejected before they undertook another signature drive. The petition in the second attempt was accepted but scheduling was delayed due to coronavirus pandemic.

But by that time attorney Benefiel charged Mr Stolzenburg with aggravated battery, for which he pleaded guilty and received two years’ probation last year in August. But she calls the verdict inadequate and “bittersweet.”

“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,” she said.

The hearing for the grand jury convened by Ms Smith has been scheduled for 29 September.

“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.”