Criminal Justice

After prosecutor declines to bring rape charge, accuser uses unusual law to convene her own grand jury

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A Kansas woman is taking matters into her own hands after she was unable to persuade a prosecutor to bring a rape charge against the man she accused of strangling and slapping her during sex.

Madison Smith, 22, is convening a citizen grand jury to consider a rape charge, report the Washington Post and the McPherson Sentinel.

Smith is relying on a Kansas law originally used in the 1800s by citizens who wanted to enforce temperance laws against saloonkeepers, according to the Washington Post. More recently, the law has been used to prosecute abortion providers and owners of adult bookstores.

Smith is thought to be the first person to convene a citizen grand jury to pursue a sex-crime charge, according to the Washington Post.

The Kansas law required Smith to gather voter signatures on a petition that totaled 2% of her county’s gubernatorial vote in the last election, plus an extra hundred signatures. The total amounted to 329 voter signatures. Smith gathered the petition signatures with the help of her parents in a hair salon parking lot.

Smith was also required to get court approval of the legal grounds for the grand jury. On Tuesday, a judge set a Sept. 29 date for the grand jury.

Only five other states have similar laws in place.

Smith was a student at Bethany College in Lindsborg, Kansas, when the incident took place in February 2018. Smith had run into a friend while doing laundry in a dorm. They went to his room, where they began to have sex.

Smith said she consented to sex until the fellow student began slapping and strangling her while continuing sex, according to an account that she gave at a court hearing. When she tried to pull his hands off her throat, he squeezed harder, Smith said. She would begin to lose consciousness during the strangulation, which lasted 20 to 30 seconds at a time. When he released his hands, Smith said, all she could do was gasp for air.

Smith said the student forced her to perform oral sex and tried to penetrate her anally. She told her parents about the assault the next day and showed them the bruises on her neck. She went to the hospital for an evaluation and spoke with police.

But when Smith met with the prosecutor, McPherson County Attorney Gregory Benefiel, he said she wasn’t raped because she didn’t verbally tell the man to stop while she was being strangled. The issue, he later said, was whether the student knew about Smith’s withdrawal of consent.

Smith said she couldn’t speak while being strangled to tell the student to stop.

Benefiel later prosecuted the student, Jared Stolzenburg, for felony aggravated battery. He pleaded guilty and was sentenced to two years of probation. Bethany College expelled him.

The Washington Post couldn’t reach Stolzenburg for comment.

Smith left her dorm and lived at home after the incident. She graduated from the school in May with a biology degree and plans to go to graduate school in nursing. Her aim is to earn accreditation as a sexual assault nurse examiner.

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