Courtesy of Justin Boardman
- A Kansas woman is invoking an 1887 state law to convene her own citizen-initiated grand jury.
- Madison Smith, 22, says she was raped in 2018 by a fellow college student.
- The county prosecutor charged the student with battery, but refused to bring a rape charge.
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Madison Smith will never forget the moment a Kansas prosecutor told her she hadn't experienced a rape.
What she had experienced in her freshman year of college was "immature sex," according to the prosecutor. The problem, he explained, was that Smith hadn't verbally said "no" or "stop" when the man she was having consensual sex with suddenly turned violent, slapping her face repeatedly and wrapping his fingers around her neck.
"I was dumbfounded," Smith told Insider. "I didn't say no, but I was also being strangled. I can't speak if I can't breathe."
Ultimately, the McPherson County Attorney, Gregory Benefiel, charged Smith's attacker with felony aggravated battery. Jared Stolzenburg pleaded guilty last year and received 24 months of probation.
But to Smith and her family, that wasn't good enough. Come September, the Smiths will be convening their own citizen-initiated grand jury in a last-ditch effort to seek justice.
The family is invoking an obscure 1887 Kansas statute that allows citizens to petition for their own grand jury to launch a new investigation - and possibly lay new charges against Stolzenburg.
Their hope is that a grand jury will agree that Benefiel shouldn't be the one to prosecute the case, and that a special prosecutor from the Kansas attorney general's office should be appointed instead.
"I don't think [Benefiel] understood that my family and I - we're not the average victim and victim's family," Smith said. "We knew what was right. And we knew that what the county attorney was doing was not right."
Smith's attacker pleaded guilty to battery. She says that's not enough.
Smith's ordeal started on February 11, 2018, when she was a freshman at Bethany College in the small Kansas city of Lindsborg.
Smith told Insider she ran into Stolzenburg, who was then a close friend, in their dormitory's laundry facilities that evening. The pair started chatting and agreed to hang out in Stolzenburg's room, she said.
"Things started progressing and we were kissing and making out and then eventually began to have sex," Smith said. "And that was all consensual - up until the point he started slapping me and strangling me."
Stolzenburg would grip her neck for 20 to 30 seconds at a time, over and over again, Smith said. When she tried to remove his hands, he would tighten his grip, she added.
Smith said he also tried to penetrate her anally, without her consent, and even spun her around, grabbed her hair, and forced her to perform oral sex.
"I was scared that I wasn't gonna make it out alive," Smith said. "I froze. I did whatever I had to do to come out alive."
She said when Stolzenburg was finally done, she caught a glimpse of herself in the mirror beside his bed. Her neck was covered in bruises - one in the shape of a handprint.
"He tried to convince me that they were hickeys," she said.
Neither Stolzenburg nor Benefiel immediately responded to Insider's requests for comment. But Benefiel told The Washington Post he believed justice had been done by securing a battery conviction.
"There is no doubt in my mind that Madison believes that she was a victim of rape," he told the newspaper. "It was approached in that way, and then charging decisions were made based on the evidence that was available in the case. I don't believe that we minimized this."
'Do you guys have one of those weird grand jury laws?'
Smith's mother, Mandy, recalled her daughter standing in their driveway the day after Stolzenburg attacked her, pulling down the neck of her shirt to reveal bruises.
"I was raped last night," Madison Smith told her parents. "I think I have to tell you this."
"I just, I completely lost it. I completely lost it," Mandy Smith told Insider.
The family immediately contacted the school and the police, and started speculating about what charges prosecutors would bring.
Mandy Smith said her husband worked in law enforcement for 23 years, and the family has many friends and relatives familiar with policing and criminal law. But they weren't prepared for what Benefiel would tell their daughter, which was that he was not going to file charges.
"We were absolutely stunned with the reaction of the county attorney," Mandy Smith said. "We couldn't even comprehend the words that he was saying to us."
Courtesy of Justin Boardman
Benefiel later changed his mind and pursued the battery charge, but the Smiths weren't satisfied - they wanted Stolzenburg charged with a sex crime.
"He just filed a charge that was the same as him hitting her with a baseball bat, which is equally as horrible, but not the same type of crime," Mandy Smith said.
Disappointed and enraged, Mandy Smith began looking for ways to get around Benefiel's reluctance. The answer came to her on the treadmill, while she was listening to the Minneapolis Star Tribune's Denied Justice podcast, featuring a retired detective in Utah who specialized in sex crimes.
Justin Boardman now runs a training and consulting firm that teaches police and prosecutors to strengthen their sex crimes investigations and handle victims without re-traumatizing them. When Mandy Smith emailed him to see if he could help with her daughter's case, Boardman immediately agreed.
On a Zoom call one day with the Smiths and a lawyer, he recalled a similar case he had been working on in Utah.
"I said, 'Hey, do you guys have one of those weird grand jury laws?'" Boardman told Insider.
The lawyer did some searching, and found that the Smiths could, indeed, call their own grand jury independently of the McPherson County prosecutor.
"It was a hail Mary. I'm not an attorney - I'm an ex-police detective," Boardman said. "But I said, 'Let's be creative and think outside the box. Let's see what we can figure out.'"
To convene their own grand jury, Kansas statutes require citizens to gather signatures from 100 voters in the county, plus 2% of the total votes cast in the county's last gubernatorial election. For the Smiths in McPherson County, that equated to 329 signatures.
The Smiths started knocking on doors and approaching shoppers at farmers' markets. They even set up a tent in the parking lot of a hair salon, where they told strangers about the worst night of Madison Smith's life.
"My mom would just go up to people and be like, 'Hey, have you heard my daughter's story? Would you like to sign?'" Smith said. "I was initially kind of scared about the reactions that we were going to get, and there are always going to be people who are negative and don't want to believe anything victims say, but there are so many more good people than there are bad, so much more support than negative comments."
Smith said some people she approached wouldn't even let her finish her story, saying, "Say no more, I'll sign."
A grand jury could decide whether to replace the county attorney with a special prosecutor
On September 29, Mandy Smith will greet a grand jury and give an opening statement, explaining why she believes the county attorney shouldn't spearhead the case against her daughter's attacker.
If the grand jury agrees, they could hire a prosecutor and an investigator to pursue new charges and prosecute Stolzenburg anew.
The Smiths acknowledge a new case could pose a legal conundrum concerning double jeopardy laws. The US Constitution prohibits prosecuting someone twice for the same offense.
But Boardman says the Smiths will argue that Stolzenburg won't be charged twice for the same offense: Madison Smith has accused him of committing multiple crimes that evening beyond battery, which were never charged.
Though there's no guarantee that Stolzenburg will face new charges, let alone a conviction, Madison Smith said that's not the point.
"Even if it doesn't end up going my way at the very end of everything, at the end of the trial, I tried my best. I swung the bat. I tried as hard as I could," she said. "But if it changes it for the next person, then I did something right."
"I hope people want to start fighting more, just because they see that somebody else could do it," she continued. "And sometimes it just takes that one person."