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A college student who called her own grand jury doesn’t get the rape charge she sought for her attacker

Madison Smith used an arcane Kansas law to pursue a case in her 2018 assault: ‘From the very beginning, I have said I want my day in court.’

Madison Smith said she never doubted that the attack she endured in 2018 in a Kansas college dorm room was a sexual assault. But the local prosecutor refused to bring charges for a sex crime. (Christopher Smith for The Washington Post)

A young woman who convened her own grand jury under an obscure 19th-century Kansas law — an unprecedented action to press a sex crime — has learned there will be no new indictment for an assault she thought should have been prosecuted as rape.

Grand jury proceedings are secret and typically only become public when an indictment results. Madison Smith, 23, who appeared before the McPherson County grand jury for almost an hour in October, said Tuesday that her lawyers had been told the panel did not hand up the charge she had been seeking against her attacker since 2018.

That man had pleaded guilty to aggravated battery for strangling and hitting Smith during what started as consensual sex in a college dorm room. Smith, however, steadfastly believed he should have faced sex charges and continued to push for that on her own.

Smith said Tuesday she felt both numb and angry at the outcome but had no regrets about pursuing the case.

“I definitely feel we brought a lot of awareness to the fact that a lot of sexual assaults get pushed under the rug and ignored,” she said. “From the very beginning, I have said I want my day in court, and I got it. Even though it didn’t go the way I hoped, I know I tried as much as I could.”

Smith had used the 134-year-old state law that allows Kansans who can muster support from others in their county to summon their own grand jury if a prosecutor does not act. The law’s original goal was to allow residents to go around local prosecutors who did not charge saloonkeepers for flouting temperance laws.

Smith and her supporters became the first to use the statute for an alleged rape. In her case, the county prosecutor declined to bring sex crime charges against her assailant, instead handling it as an aggravated battery.

Smith was a freshman at Bethany College in Lindsborg, Kan., the night that she and Jared Stolzenburg went to his dorm room to talk and then began having consensual sex. He immediately began slapping and strangling her during intercourse, according to court records.

Smith testified last year in court proceedings that when she tried to pull Stolzenburg’s hands away, he squeezed harder until she began to lose consciousness. She said she wanted him to stop but was unable to speak. She feared she would die.

McPherson County Attorney Gregory Benefiel told the family that because Smith had not explicitly told Stolzenburg to stop, she had not withdrawn consent and so his office would not pursue a sex charge.

Stolzenburg, who pleaded guilty to aggravated battery and received two years’ probation, could not be reached for comment on Tuesday. A representative for the office of Brent Boyer, who is listed in current records as Stolzenburg’s defense attorney, said the office no longer represents him.

The Kansas law required Smith to gather 329 signatures of county residents on a petition, which she and her family accomplished by setting up a tent in a hair salon parking lot and telling her story to strangers.

After delays, some because of the pandemic, the grand jury convened last month in a large meeting room in a former bank building in McPherson. Its proceedings were led by David Yoder, who retired last year as the prosecutor in neighboring Harvey County. He was appointed by the judge in the case to replace Benefiel, who also did not respond to a request for comment on Tuesday.

On Oct. 18, Smith sat down before Yoder and 14 jurors.

She testified for almost an hour in a conversational exchange with the prosecutor, she recounted afterward. He asked her to detail what happened that night in the dorm. Did she report it? Has she gone to therapy? What has the legal process been since then, and how did that make her feel?

“They did ask me at one point why I think the county attorney [Benefiel] didn’t file rape charges,” Smith recalled. “I said that he told me I had to verbally withdraw consent. But I said I was being strangled, and when I was being strangled, I was more focused on breathing than on speaking.”

Yoder described her state of mind that night: “He said, ‘You were overcome by force and fear,’ and I said, ‘Yes, that is correct.’ ”

She and her family are left with questions about how the grand jury came to its decision.

“This isn’t the outcome we had hoped for,” said her mother, Mandy Smith, “but I have to celebrate Madison’s persistence and bravery and hope she inspired other victims to stand up for their rights. When victims stand up to a broken system, that is when something good starts to happen.”

Her daughter, who graduated from college in June, now works at a Kansas health-care facility and is applying to nursing schools. She hopes to one day receive certification to treat victims of sexual assault.

Smith said that she pursued her case not only to get justice for herself but to change how sexual assault is handled by police, prosecutors and lawmakers. For both efforts, she received an outpouring of support from strangers.

“With stories like these, you do worry about … ‘Oh, she asked for it,’ or ‘What was she wearing?’” she acknowledged before the grand jury convened. “I was initially scared of that. There were some bad comments out there, but the good ones far outweighed the bad.

“So many words of encouragement, and how people have believed me without knowing me­, is incredible,” she continued. “My dad said it the best: They are literal angels — it’s a sign we are doing the right thing.”

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