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.