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 (Stolzenburg was also apparently a Bethany College student who reportedly was administratively withdrawn in March 2018 from the school).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.