The Kansas Alternative: Citizen’s Grand Jury

Much as the meaning of the word “rape” has been so diluted as to reduce many accusations into excuses, that doesn’t mean rape doesn’t happen. And when it does, and it does, it is a heinous offense that compels investigation and prosecution. But what if a prosecutor refuses to pursue it? If you’re in Kansas, there is an alternative.

For three years, the local prosecutor has resolutely refused to make [Madison Smith’s] 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.

It’s not that the local prosecutor ultimately did nothing. He eventually pursued a charge of felony aggravated battery and the defendant was convicted. But that wasn’t enough. That wasn’t rape.

“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.”

Her confusion about what defense attorneys do, and are supposed to do, aside, she decided to take matters into her own hands.

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.

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 [Nebraska, North Dakota, Oklahoma, New Mexico and Nevada], 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.

That Kansas law provided an alternative raises some curious problems and questions. Smith’s allegations certainly seem to sustain a rape charge, which raises the specter of the prosecution having failed her, and his duty, by not pursuing the charge.

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.”

Consenting to sex has nothing to do with consenting to being struck or strangled. So why wouldn’t the prosecutor pursue rape charges?

By then, court records and recordings of conversations reveal, their disagreement with McPherson County Attorney Gregory Benefiel had turned highly contentious.

Smith’s story is horrific. But then, we only have Smith’s story presented at this point, and whether the evidence supports it or contradicts it remains unclear, but there appear to be recorded conversations with Benefiel where he explains his decision not to pursue rape charges.

“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.”

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.”

While I’m not a Kansas criminal defense lawyer, this explanation appears deeply flawed. Consent to sex is not consent to collateral, yet integral, violent conduct in the course of sex, and her failure to communicate her withdrawal of consent as she’s being strangled is one of the worst arguments I’ve ever heard.

So it’s a great thing that Smith has an alternative, even if it forced her to expose her allegations to strangers in a parking lot to get the requisite number of signatures to convene a grand jury? That’s not clear either. First, there’s the double jeopardy issue, as Stolzenburg had already been convicted of assault stemming from the same conduct. While the nuance of Kansas law might provide a crack here, it would appear to be fairly clear that a second prosecution for a different offense stemming from the same course of conduct would violate double jeopardy.

The second problem is that while the law provides for a citizen to convene a grand jury, it does not require the prosecutor to prosecute the indictment or give the citizen the right to conduct a private prosecution. So you end up with an indictment and no place to go with it.

One of the arguments raised by women who choose not to go to the police is that their allegations are rejected, ridiculed, excused or just not taken seriously. When they are serious allegations and the evidence supports them, it’s inexcusable that they are not pursued and that a young woman like Madison Smith is constrained to pursue it on her own. At least Kansas offers an avenue, even though it may yet end up a dead end.

21 thoughts on “The Kansas Alternative: Citizen’s Grand Jury

  1. Skink

    I’m no CDL, but I hold up my end by doing 3 felonies a day. Agg Batt during consensual seems like the right call. Otherwise, you get a jury with question-filled heads. You know the questions.

    But to the point: we need some of this in the Swamp. I’d dearly love to privately indict the IRS and EPA. Taking down the line-parker in the garage would be fun. Don’t get me started on the garbage guy that leaves the bin and cover 20 feet apart and in the yard. But most of all, it’s the dumbass cook that can’t understand that toast is brown, not white. He needs to be in chains.

    Besides, I wanna see if a ham sandwich really can be indicted.

    1. SHG Post author

      I want to see you in the parking lot at the Piggly Wiggly asking people to sign off on under-toasted bread.

      1. Skink

        The Pigglies are only in the panhandle. The panhandle is not the Swamp–it’s either Georgia or Alabama. There hasn’t been a serious issue regarding this geography since at least when Ponce came here looking for a fountain.

        Nope, it would be Publix, home of the World’s Finest Fried Chicken. If I gave that stuff away, I could indict Christmas morning.

  2. Elpey P.

    “So you end up with an indictment and no place to go with it.”

    Why, we just proceed to citizen’s trial and citizen’s sentencing, of course. For justice. The news media can be an ally. They could convict and sentence a ham sandwich.

  3. miketrials

    This isn’t a DJ problem, rather collateral estoppel. The state has one bite at a jury for particular conduct in an event, and charges it could have but failed to bring are thereafter extinguished in the same way as an acquittal would do this.

    I’m no Kansas CDL either, but it seems as a legal construct, the lack of withdrawal of consent does serve to “explain” why no charges were brought for rape. Well, sort of. Having voluntarily begun to participate in a sex act, she’s responsible until she communicates withdrawal, not a particularly elusive proposition. If this wasn’t communicated, it is a defense to the sex offense. One could see an appellate court going this way. I get it, I get it, she couldn’t communicate, but that’s subsidiary once she participates. But that defense does admit defendant’s participation in certain conduct, in the same way that voluntary intoxication as a defense asserted to a murder necessarily imputes that your client killed the guy, right? An assertion of lack of mens rea for the conduct must admit the conduct itself. It’s entirely foreseeable that a prosecutor would make the legal decision to focus the jury on the FAB, and foreclose a defense to rape which might spill over in deliberations on the FAB. It’s just more surprising from an elected prosecutor than an appellate court. So what that he didn’t satisfy her with more than a FAB conviction for this conduct? What’s inexcusable is the three years it took him to figure this out, denying all parties any form of closure. I’m surprised your usual rage against the machine and in favor of due process swings this way in this instance.

      1. Noel Erinjeri

        That clip will never be retired. It’s the Beethoven’s Fifth of internet memery.


      2. PseudonymousKid

        Good on you, Pops. I was thinking you were favoring mike by letting him post his stream of consciousness crap, but you pulled through and showed you really are sensitive to me feeling like you are playing favorites. We’re all sinners here in the hands of an angry CDL.

      3. miketrials

        I guess in Scott-land petulance is a form of analysis, and snark is a substitute for substance. I, and others around these parts, I’d reckon, have won trials outright with weaker defenses than could have been raised to the rape charge. From what we know, there was an explanation, albeit one getting lousier by the moment (3 years???), for what the prosecutor didn’t. But decline he could, in reliance upon a jury’s unreliability. At least he got the FAB conviction, eventually. To my gimlet eye, his explanation is on the shelf next to that big ol’ bucket of qualified immunity, and stinks similarly. But it’s not without foundation. Isn’t that how an experienced lawyer would deconstruct this?

        1. SHG Post author

          One of the more curious aspects of having comments here is that people write completely incoherent shit that they believe is brilliant but for the fact that nobody but them has a clue what they’re talking about. What’s not as curious is how easily the fragile get offended when they’re told they’re incoherent.

          You should start a blog, Mike, and share your brilliance with the world and I’m sure you’ll be adored by all the lawyers and judges who now waste their time in Scott-land. As for here, you’re just wasting my bandwidth with this crap. Best of luck and I’ll just have to petulantly manage without you.

  4. B. McLeod

    I had the same questions about the prosecutor’s analysis, and it occurs to me that facts are potentially being left out of the complainant’s account. What her boyfriend is described as doing would be highly abnormal unless he had reason to think she was a practicing member of the BDSM fetishist subgroup known as “gaspers.” If the facts are simply as she described them, there would be no basis to not charge the assault based on the strangulation and hand blows. If it develops that she had an agreed code word but never said it, the case is vastly different. I suppose more information will come out as the case is tried, and that it will include the defendant’s asserted basis for believing the complainant consented to the slapping and strangulation.

    1. SHG Post author

      I wondered about that, and about the prosecutor’s “recorded” explanation. There may be far more to the story.

    2. JJ

      Is it that abnormal for men to strangle women who didn’t consent to it? Probably underreported, especially during sex.

      1. SHG Post author

        There is a BDMS thing (remember when Robert Chambers killed Jennifer Levin?). How abnormal that is goes far beyond my personal experience, but when I once questioned the normality of strangulation during sex, I was chastised on twitter by a fairly popular woman for kink shaming. Perhaps it’s far more common than one would expect if one wasn’t into that sort of thing.

        1. Igor K

          It is something talked about online by people sharing their experiences and also has become much more prevalent in online porn. Plenty of videos not tagged as BDSM feature some level of strangling or at least what looks like it. Given how a lot of people get their ideas about how to have sex from porn it seems like a reasonable inference. Also kink shaming is a bad argument when it comes to not obtaining proper consent.

  5. Eliot J Clingman

    Strangulation sex is very popular, at least In these parts ( San Diego California)

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