There is an interesting case out of Kansas where an alleged rape victim has used a 134-year-old law to seek her own grand jury after prosecutors reached a plea bargain with the alleged attacker. Madison Smith, 22, had to gather hundreds of signatures to impanel a “citizen grand jury” under Kansas law in a case that could face significant evidentiary and constitutional challenges.
There are only six states that allow such circumvention of prosecutors in the empanelment of grand juries.
Smith was a student Bethany College in Lindsborg when she claims to have been raped by Jared Stolzenburg. She said that she encountered Stolzenburg while doing laundry and went back to his room at Bethany College. (Stolzenburg was also apparently a Bethany College student who reportedly was administratively withdrawn in March 2018 from the school).
Smith admits that they had consensual sex but that he began slapping and strangling her. She said that she would begin to lose consciousness and then he stopped. He would then resume for 20 or 30 seconds at a time.
The defense presumably would have raised a “rough sex” defense. Rough sex or erotic asphyxiation (EA) appears a common practice between consenting partners. It can also be clearly used as a way of shielding assault and violence against women.
Prosecutors reportedly were concerned about the case because of the absence of any withdrawal of consent but Smith insists that she was unable to make such a statement due to the choking and strangulation. Prosecutors often face such conflicting accounts in so called “rough sex cases.” As we have previously discussed, feminist groups have campaigned to curtail the defense in some countries.
Under the Kansas law, a person must gather 100 voters plus 2 percent of the number of people who voted in the county’s last gubernatorial election. In this case, that meant that Smith had to collect 329 signatures (though she had to do that twice due to the rejection of the first petition on a technicality). The grand jury then allows for an investigation to occur under the auspices of the grand jury.
This case has the added complication of a plea agreement. Stolzenburg was allowed to plead guilty to aggravated battery and receive two years’ probation. Now, Smith is asserting the right to charge him with rape in the same case after the prosecution and the court signed off on the plea agreement.
Notably, this attack occurred when the courts were conducting a major review of this law. In 2018, the Court of Appeal of Kansas addressed a case of a citizen grand jury. In Re: The Petition To Summon A Grand Jury the court ruled in favor of Steven Davis in forcing the empanelment of a grand jury to investigate Kansas Secretary of State Kris Kobach and others for allegedly engaging in various election crimes. The appellate court reversed a lower court’s decision that the grand jury lacked the minimal legal and evidentiary basis for an investigation. It held:
“In issuing our decision today, we are mindful that the mere calling of a grand jury directed at the actions of a public official or a private individual without probable cause to believe a crime has been committed and without the guiding hand of a professional prosecutor can have serious personal and professional consequences. But the Kansas Legislature has determined that it wants to provide for citizen-initiated grand juries and it wants them to have broad powers to investigate possible criminal activity. The wisdom of this law is not a concern of our court. Our role, as set forth at the beginning of this opinion, is merely to interpret and apply the law as it exists.
The district court erred when it held that Davis was required to allege specific facts in his petition. The statute merely requires sufficient general allegations. Davis has met this standard.”
The ruling adopts a very broad view of the statute and would allow for grand jury investigations without satisfying the usual requirements of probable cause and specificity in the underlying documents. However, the defendant has rights that also come into play if there is any attempt to prosecute after he has already been given a plea agreement.
Stolzenburg will presumably decline to appear before the grand jury. That could leave this as a one-sided investigation. If the grand jury indicts, a court would then have to rule on a defense motion to dismiss the charges in light of the earlier plea. That could force a new appeal and review of this relatively rare law.
Interesting set of facts, but I hope someone helps her get into civil court and sue him as the standard of proof is lower, and a jury would be sympathetic to her. If she wins a judgement of any kind it nails him forever on the facts. Just comes from knowing this will follow him forever!
While I admire her fortitude in pursuing what she thinks is the course of justice, I believe she is ill advised and will end up disappointed. There is the matter of double jeopardy that will end this early on. In addition, the reality is that the prosecutor actually did his job on this one and served her case rather well. He basically gave her the input of his legal experience – consensual sex (particularly of a very casual nature like this – basically just a hookup), her testimony that she did not at any point say or indicate stop or no (choking for 20 seconds then break then again – could not indicate in break and did not say that she indicated non-verbally) and the impossibility of collaborative evidence beyond what was admitted to.
The defense had the boy admit to hitting and choking and also to acknowledge that it may not have been consensual. Then it goes to the degree of injury (which does not seem to rise to her “fear she was going to die”) and the circumstances. Lack of witnesses, other circumstances and the quality of the girl as a witness suggest the plea bargain (for assault) was reasonable and about the best he could have got. Taking her to court would have been a disaster (and will be if she continues to go ahead). This is a case where the defense will slaughter her. A classic case of the “victim” being victimized again. Hooking up with someone she barely knew for casual sex makes this a very weak case (not, as feminists will plead, due to blaming the girl or due to being judgemental) since she can hardly use the strategy against the rough sex defense since she cannot claim history of clean sex or knowledge of him being into normal stuff in past. Harder to prove that the whole thing was not agreed, but proved rougher than she thought (a very much weaker position on the rape front).
Lastly, as pointed out, if the sex was finished before the choking (as the defense would assert) this was just (If one can use that word) assault and not rape. No way to prove this last at all, just he said, she said – then innocent until proven guilty.
Sad case, I feel for the girl. But clearly also a case of poor/immature judgement. Dragging this out again, which she may be entitled to do, will only make it worse for her. Unfortunately the prosecutor was right when he talked to the family and advised moving on.
If this were CA they could not bring the rape charge as it would have been required/mandatory to have been brought WITH the plea bargain charge/s under the 14th Amendment, statutory law and case law. See Penal Code section 1050, and People v. Lowe, 40 Cal.4th 937, 946 (2007).
I’m not clear on what she said happened. If they had consensual sex, and afterward he hit and choked her, then I would think that’s assault and battery and not rape. For example, if a couple had consensual sex, and then later that night he shot and killed her, it would be murder, not rape and murder. If they had consensual sex, and afterward he hit, choked her, and sexually assaulted her, then it’s assault, batter, and rape. Or maybe this is trying to say that it started out consensual, but during that consensual act he began hitting and choking her, and it turned into rape.
One sometimes hears how victims are left out of plea deals. Sometimes they aren’t consulted as to whether they would be satisfied with the plea deal. They are simply informed of it as a fait accompli. I wish prosecutors would involve victims more in the process.
While this vintage law might give victims more power, its utility is doubtful if it is done after a plea deal, and without the support of the prosecutor. If the victim doesn’t hear about a plea deal until it’s accepted, then it seems there is no avenue for them to bring their own charges without coming up against the problem of an accepted plea deal.
At this point, it is a disturbing allegation that has not yet been proven. I assume she had physical evidence of hitting and choking for him to accept the plea, so perhaps she can prove her case. She certainly wants the chance. Perhaps it would be better if prosecutors tell her that she has the choice to either impanel her own jury, or they will proceed with the plea deal. That way it gives her the choice before any issue of a plea.
My heart goes out to victims who feel like a light plea deal did not grant them justice. This is happening with some regularity here in CA, where so many crimes aren’t charged at all. Prisons are emptied. Even violent criminals are now eligible for early release for good behavior. If a rapist doesn’t rape any women in prison, I guess he gets out early.
I think we should do away with parole. The sentence should be fair and just. We should have shorter sentences, but every day of it should be served. By all means employ every outreach program that works to reduce recidivism and make these inmates become functioning members of society when they are released. But the prison term should be such that when released, ex-cons should be highly motivated not to reoffend. We shouldn’t be tacking on extra time just to hope that some time gets served before someone’s back out on parole. Good behavior should earn privileges like TV that makes the time go easier. But why should someone get out early just because they don’t shank anyone in prison? In CA, if you lose your early release credits for bad behavior, they still get the chance to earn it back. I wonder if someone shanks or sexually assaults another prisoner, if they get to earn back their brownie points and still get released early. It’s a scandal.
I would like to point out that it’s dangerous to have sex with a total stranger. Yet, this has become the norm. There are many people today who have absolutely no idea how to go on a date, how to court, or find someone who will court them, or how to have a real relationship. It’s swipe left or right.
This is not only emotionally unsatisfying, but it’s dangerous. You are in a physically and emotionally vulnerable situation, and you have absolutely no idea if this is a good person. Ted Bundy was considered attractive. If what she described was true, then she’s lucky she wasn’t murdered or experienced brain damage.
Rape is never deserved. What I’m saying is that there are actions everyone can take to increase their own chances of survival. Like, don’t investigate a noise downstairs without a weapon. Don’t give your address to a total stranger. Don’t date a gang member. If you don’t know a man very well, then meet in a public place for coffee or whatever. Get to know them. Don’t invite a stranger into your home, and don’t go to the home of a total stranger. Before someone has sex, they should have some level of trust in that person, man or woman. Trust your instincts.
Although I agree with your comment for the most part, I really wish you had omitted your last sentence – “Trust your instincts”. Sexual urges are instincts too and those are what causes these random, anonymous connections – The instinct to mate with someone who is perceived as superior mating material based on physical attributes.
Karen8
While not in the same library, let alone the same book of kinks I partake in, this is erotic asphyxiation. I am connecting some dots, maybe they dont even exist, but I think they had “normal” sex. Then the man continued (afterplay?) with more sex, but adding the erotic asphyxiation to the fun. Thus the sex, while starting out consensual, morphed into rape, because of the addition of choking.
“She said that she encountered Stolzenburg while doing laundry and went back to his room at Bethany College.”
– Professor Turley
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I stopped reading here.
The failure of weak or ‘restorative justice’ prosecutors to do their jobs invites vigilante justice. Allowing citizens to call a grand jury or to initiate actual prosecution [which has been allowed before] are likely lesser evils. I can’t say they would be any more flawed than official prosecutions like that of officer Chauvin.
IN CONTEXT
Madison Smith, a student denied justice when for three years prosecutors refused to bring criminal charges against her accused rapist, successfully took the law into her own hands by using a long-forgotten statute to force a grand jury to consider her case, and possibly finally initiate prosecution, in what has been called “a vestige of frontier justice.”
It’s also a great illustration of the motto “Sue The Bastards.”
In Smith’s case, she relied upon a law, dating back to the 1800s, which allowed citizens of Kansas to themselves summon a grant jury when prosecutors refuse to bring criminal charges which are warranted under the circumstances.
It was originally designed to let citizens, rather than engaging in vigilante justice, initiate criminal proceedings against saloonkeepers when local prosecutors – for a wide variety of reasons – refused themselves to use the criminal law to enforce temperance laws.
It was amazingly successful. An 1889 newspaper article reported that “as soon as the first grand jury met, every whisky joint, about seventy-five in the county, and every drug store selling without a license had disappeared.”
To Sue the Bastards successfully, one often must be creative in using the law, but Suing the Bastards is a powerful weapon to fight wrongdoing and achieve justice, and sometimes the only way to succeed.
Good for Ms Smith.
She felt ill served by local justice and she took matters into her own hands.
Took courage, hard work, and determination.
Probably won’t win, but she is telling the world that she believes that Mr. Stolzenburg is a rapist (and not just an attacker).
DA is probably also embarrassed after taking the easy path.
Comes with costs, but I like a system that breaks the government monopoly on power.
Only experience I have to draw from not an apples for apples comparison BUT my Mother was murdered in 2004 by my step-father and at trial he was offered a plea AFTER the DA came to me and ask me if this would be justice for my Mother under her circumstances. I appreciated I was asked first otherwise I would have lost control of my mouth I’m sure and been the one in trouble. We did my step’s murder trial on his 74th birthday. You can’t plan stuff like that, 7 months to the day God took him out on 9/11, go figure.
I lost my twin brother a few months ago unexpectedly, but of natural causes. The best brother a guy could have. He was a GREAT father and his two young daughters miss him terribly. I feel my own pain and feel the pain of my nieces every day. I could not imagine losing a loved one to murder. I’m so sorry for you and yours. I felt a “pang” when I read your comments.
What “easy” path would that be? You think it’s easy to prove a case were the alleged victim ADMITS to consensual sex? And where apparently there were no physical injuries? Right, they took the “easy” way. This is akin to double jeopardy and the case will flutter and flounder out.
It seems to me that double jeopardy would apply here and protect the defendant in this instance. We actually have a similar process in Canada, whereby a private citizen can allege a charge and then go before a judge. It’s most usually done with a lawyer, but a citizen can do it on his own, as I have. Once in front of the court, the Crown Prosecutor may choose to take up the prosecution, or refuse it.
It’s unfortunate that more of the US doesn’t have this procedure available. I suspect a lot of what we see currently being ignored by the courts due to politics just might find its way in front of a Grand Jury, to the betterment of the nation.
Does double-jeopardy apply if he was plea bargained? He was charged with battery but not with rape. As I am not a lawyer, I am not sure whether double-jeopardy applies to the incident or to the charges applied in the crime. He could not be retried for battery, but he could for rape???
PR:
“As I am not a lawyer, I am not sure whether double-jeopardy applies to the incident or to the charges applied in the crime. He could not be retried for battery, but he could for rape???”
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Double jeopardy attaches when the court accepts a plea agreement between a defendant and a prosecutor.
Thank you for the clarification, Mespo!
Double jeopardy puts this case in well:
https://youtu.be/pT6wL9tjcMs
Court is adjourned.
These proceedings are closed.