When Prosecutor Refuses Rape Charges, Survivor Convenes Her Own Grand Jury Based on Obscure 1887 Law

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When Prosecutor Refuses Rape Charges, Survivor Convenes Her Own Grand Jury Based on Obscure 1887 Law

When Prosecutor Refuses Rape Charges, Survivor Convenes Her Own Grand Jury Based on Obscure 1887 Law

May 25, 2021

When a Kansas prosecutor refused to bring charges after a woman accused a man of rape, the alleged victim took the law into her own hands. Madison Smith, a 22-year-old graduate student at Bethany College in Lindsborg, Kansas, has spent the past three years fighting to hold the perpetrator accountable for a rape she alleges occurred in his dorm room in 2018. Citing an obscure law from the 19th century and utilizing herculean efforts fit for a Hollywood script, she succeeded in convening her own grand jury. But it was no easy feat, and required multiple attempts.

The genesis of the legal struggles can be traced to a day when Smith was engaged in consensual sex with an acquaintance, Jared Stolzenburg. While Smith says the encounter began unremarkably, things took a dark turn when, without warning, Stolzenburg allegedly became violent. Smith says he suddenly began slapping and strangling her, impeding any ability for her to say “stop.”

With visible bruises on her neckline, Smith disclosed the incident to her parents the next day. They alerted authorities and took her to a hospital for an examination.

Weeks later, when she met with McPherson County Attorney, Gregory Benefiel, Smith was shocked at his reaction to what she asserted was a violent rape. “I was dumfounded,” Smith told Insider.

Benefiel has referred to the alleged rape and attack as “immature sex” among college students. He told Smith that since she never uttered “no” or “stop” while being choked by Stolzenburg, the incident effectively did not constitute rape.

“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,” Smith said during a court hearing. “He then told me he was not filing charges.”

Essentially, because Smith never withdrew her consent to Stolzenburg, Benefiel concluded the attack was not rape, and therefore determined that no such charges would be brought.

Instead, Benefiel charged Stolzenburg with felony aggravated battery (many months after the crime occurred, it should be noted). The alleged rapist pleaded guilty last year and received 24 months of probation. For Smith, that punishment was not justice. Rather than accept the decision, she took action and employed a bit of creativity.

Smith consulted with an attorney who specialized in sexual assault cases, while her mother sought the advice of a retired police detective who, according to local ABC affiliate KAKE, “runs a business training police and prosecutors to investigate sex crimes without re-traumatizing victims.” The former detective directed the mother-daughter duo to an obscure frontier law from 1887.

Smith proceeded to invoke the law – over 200 years old – that allows Kansas citizens to summon a grand jury when they feel prosecutors are neglecting to bring charges after a crime. The Washington Post reported that the law was originally used to “go after saloonkeepers when authorities ignored violations of statewide prohibition.” Smith is believed to be the first person to convene a citizen grand jury after a prosecutor declined to pursue a sex crime charge.

It took me a while to find my voice,” she told the Washington Post. “But I have found it, and I am going to use it.

Our Sexual Assault Justice Experts are here to help survivors secure justice. Contact our top-rated attorneys online or by phone for a free consultation today.

Testimony Reveals an Allegedly Violent Sexual Assault

Testimony Reveals an Allegedly Violent Sexual Assault

According to court records, Smith stated that what began as a mutually consensual act suddenly turned violent and left her both fearful and injured. Almost immediately after initiating intercourse, Smith said Stolzenburg continuously slapped and strangled her.

“I tried to initially pull his hands off of my throat, and he squeezed harder every time,” Smith recounted in a 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.”

The Washington Post reported that Smith told investigators Stolzenburg forced her to perform oral sex and tried to penetrate her anally. “I truly thought that he was going to kill me and the only way I was going to leave that room was in a body bag,” she continued in the court hearing.

After initially declining to file rape charges against Stolzenburg, County Attorney Benefiel met with Smith and her parents on a separate occasion to further explain his decision. The family taped the meeting, according to the Washington Post, and during the exchange Benefiel explained that because the sex had begun consensually, 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.”

He made the same point during another conversation with the family, asserting a “requirement of affirmative withdrawal” of consent, according to the Washington Post.

“Me taking his hands off of my throat is affirmative enough,” Smith declared emphatically. “I couldn’t speak. How can I say ‘no’ if I can’t speak, if I can’t breathe?”

The Smiths left the meeting baffled and dismayed, but certainly not defeated. Madison Smith refused to accept anything less than a rape charge for Stolzenburg.

After identifying the frontier law with the help of the sexual assault attorney and former detective, Smith realized there would be some considerable legwork involved. To actually convene a grand jury under the obscure law, Smith needed signatures from 2% of the county’s vote total in the last gubernatorial election (329 to be exact), plus an additional 100.

Determined, she set up a tent (outfitted with balloons) in a parking lot and, in what must have been excruciatingly awkward encounters, solicited signatures from random strangers by somehow explaining that she was prohibited from revoking sexual consent because a man was violently choking her at the time.

“It was very hard to keep retelling my story to stranger after stranger,” she told the Washington Post, “but at the same time I knew that what I was doing was going to make a difference one way or another.”

Smith collected the 329 signatures required in McPherson County. But she still needed a court to approve the legal grounds.

The petition was rejected on a technicality, forcing Smith to, for a second time, collect hundreds of signatures. But, once again, she did just that, successfully collecting the required number of signatures from strangers while, each and every time, recounting the traumatic sexual assault.

A three-judge panel approved Smith’s second round of signatures. And although the coronavirus pandemic caused delays, the case is scheduled to go to the grand jury on September 29 – the very grand jury Smith fought tirelessly, and against daunting odds, to convene.

“Win or lose, we swung the bat, and we swung it hard,” Smith told the Washington Post, who noted she was an avid softball player. “We tried everything we could, and we exhausted all our resources. I’ve got to know I tried.”

How Sexual Assault Survivors Can Obtain Their Own Justice

Coming forward to report a sex crime can be extraordinarily difficult for survivors, often reviving past trauma or opening old wounds. Madison Smith had a particularly arduous struggle to merely have her rape case recognized under the law.

After the assault, Smith told the Washington Post that when she went to the hospital to undergo a rape kit, the nurses “made her feel believed.” On that winter’s night, according to the Washington Post, the care the nurses provided “sharpened her focus.” After earning her bachelor’s degree in biology, Smith now wants to earn accreditation as a sexual assault nurse examiner.

Smith’s story of (initially) being denied justice is not uncommon. But her positive experience with the nurses who helped her after such a traumatic experience demonstrates an important point: it is truly critical to simply take the time and listen to survivors. So often, when survivors attempt to report an assault, the response is similar to that of the county prosecutor in Kansas.

At her attacker’s sentencing hearing – for the charge of aggravated battery – Madison Smith spoke before the court:

Mr. Benefiel, through all of this, has been the only person to tell me my rape was not rape, and I will not allow him to minimize what I survived,” she said.

Smith’s courage can be a source of motivation that serves to empower other survivors. If you or someone you love experienced an act of sexual assault, a member of Dordulian Law Group’s SAJE Team (Sexual Assault Justice Experts) is available 24/7 to listen.

Regardless of your situation – whether you’re ready to pursue legal action or still weighing your options – our dedicated professionals are here to offer the one thing that, while it may seem seemingly insignificant on the surface, can be so important after a sexual assault: Someone to listen.

DLG’s Sex Crimes Division was created to provide survivors with four tiers of all-encompassing support that extends beyond expert legal representation. Our SAJE Team is made up of professionals who have dedicated their lives to helping survivors of sexual assault. Our SAJE Team members have decades of experience with sex crime cases and have seen the varied and complex issues survivors can face.

Sam Dordulian founded DLG as a unique type of sexual assault firm offering premier resources to Californians. Dordulian served for years as a sex crimes prosecutor in the position of Deputy District Attorney for Los Angeles County. After prosecuting some of the city’s most heinous sex offenders with life sentences, Dordulian created the DLG SAJE Team to address the varied needs that survivors face when navigating the legal process.

In addition to Dordulian’s vast legal expertise – including over 100 jury trial victories – our survivor clients have access to:

  • A licensed clinical therapist with over 15 years of experience assisting survivors of sexual assault
  • Two nationally accredited and licensed victim advocates who are available 24/7 as a support network for our survivor clients
  • A retired LAPD detective who served in the department’s elite Abused Child Unit, and has devoted the majority of his 30-year career to investigating and closing sex crime cases: DLG’s Chief Investigator, Moses Castillo

While Castillo investigates every sex crime case we handle, Dordulian develops the winning legal strategy to ensure that even the most difficult of claims results in a successful outcome for the survivor.

Our experienced attorneys can help you pursue a financial award for your personal injury case. Contact us online or by phone for a free consultation today.

Consent is Not Negotiable, But it is Mandatory

It’s an unfortunate fact that many prosecutors around the country have a similar perspective to Gregory Benefiel of Kansas when it comes to sexual assault. But as we’ve pointed out in previous blogs, sexual consent is something that must occur each and every time. Despite what Benefiel and others may say, this isn’t a grey area or a soft option with room for interpretation. Every single time you have sex, your consent is required.

And if you’re unable to give consent – whether due to intoxication or a rapist’s hands being wrapped around your neck – sex is no longer legal. And that rule applies whether the other party is your boyfriend, girlfriend, ‘sugar daddy,’ acquaintance, or a total stranger you met an hour ago at a bar. Furthermore, when consent is not given and a sex act takes place, a crime has occurred.

As DLG’s Sam Dordulian pointed out in a previous blog, consent isn’t something that applies in perpetuity (i.e. giving consent once doesn’t equal giving consent forever).

“I see it so often, I wish there was a public service campaign that informed people about how consent works under the law. Giving consent once is not a blanket permission slip for anyone to have sex with you whenever they wish,” Dordulian says.

“Whether you’re in a relationship or you’re on a first date, consent is required every time, and consent can be retracted at any point. That’s something that, sadly, many people don’t realize. I can’t tell you how many survivors I’ve represented who essentially believe that once consent is given, all bets are off.”

Clients will constantly say, ‘But I initiated it at first,’ or, ‘Technically I said yes,’ and then proceed to describe how their partner turned violent or refused to stop. And because that initial consent was granted, many survivors will rationalize or forgive a violent or forceful act that was unwanted. But I tell every survivor who walks into my office, the law doesn’t countenance non-consensual acts of any kind,” Dordulian says.

And survivors should be aware that they have legal recourse. As we’ve proven in previous sexual assault case victories, the DLG SAJE Team is the most professional, talented, and resourceful group of sex crime professionals around.

In a past case, we successfully secured a multi-million dollar settlement for a survivor who was raped by a former boyfriend. Though the incident happened only once, and the defense attempted to insinuate that because the two parties met on a ‘sugar daddy’ website the survivor’s credibility was somehow questionable, Sam Dordulian and the SAJE Team prevailed.

In another difficult case, we successfully represented a rideshare rape survivor who was drugged and assaulted by her driver. Though the rideshare company must remain anonymous under the terms of the agreement, Sam Dordulian and the SAJE Team successfully recovered another multi-million dollar settlement for the rape survivor – despite the major rideshare corporation’s legal defense team including an arsenal of high-powered attorneys who tried every trick in the book to deflect liability.

When sexual assault survivors want to secure justice for a crime, they choose the proven and dedicated firm that offers a unique form of all-encompassing legal representation and personal support. Survivors who want justice for their assault claim choose DLG.

The DLG Advantage for Sexual Assault Survivors is Just a Phone Call Away

To speak with a member of our SAJE Team or learn more about your legal options, contact us online or call 818-322-4056. At DLG, we’ve maintained a 98% success record over the years while successfully recovering more than $100,000,000 in settlements and verdicts for our clients.

When you’re ready to take the first step to secure justice after a brutal sexual assault, reach out to the experts who will provide the compassion, care, personalized attention, and winning expertise you deserve.

Don’t settle for anything but the best for your sexual assault claim – choose the DLG SAJE Team Advantage, featuring the best sexual assault lawyers available.

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