The case that can change how rapes are judged in the US

Sex crimes are notoriously difficult to prosecute in court, but a woman in Kansas is using a 19th century law to ask her fellow citizens to help her press charges against the man she says raped her.

In 2018, Madison Smith alleged that a classmate attacked her when she was a college student at Bethany College in Kansas. The young woman reported the case as rape.

However, the county prosecutor refused to press rape charges, saying Smith had simply experienced a sexual encounter. “immature”. His attacker was convicted of assault.

The county attorney’s decision led Smith, now 23, to use a state law dating from 1887 to call a “Citizen grand jury”.

This jury met for the first time on Wednesday, in what is believed to be the first such case in the United States.

What does this grand jury do

Usually, the authorities investigating the cases form a grand jury to determine whether there is sufficient evidence to initiate a judicial process.

This jury, which meets in secret, will not decide whether the defendant is guilty or innocent, only if charges must be brought.

In an interview with the BBC, Smith said he hopes the result will encourage others who believe they have been victims of sex crimes and want to press charges. “Victims have rights,” he said.

Most women do not report these types of crimes, and when they are reported, the process usually does not proceed.

According to research conducted at the University of Massachusetts at Lowell, fewer than 20% of reported rapes lead to arrest.

“We have to change the culture [sobre el consentimiento]”Added Mandy, Madison’s mother.

Defense of the accused

However, the accused former classmate, Jared Stolzenburg, now also 23, He denied that he had raped her.

The young man was charged with assault, of which he pleaded guilty.

He told the BBC that he regretted the encounter, admitted that it had been harsh and that he mistakenly believed that everything was fine. But, he insisted, it was consensual.

What the grand jury decides in that county in the state of Kansas will have powerful consequences for both, both for the accused and for the alleged victim, and perhaps for the rest of the country.

Experts say that the process initiated by Smith could set a precedent and that others might want to convene a grand jury in cases involving sex crimes.

But those who did not face charges may find themselves, like Stolzenburg, in legal purgatory, waiting to see if they could still be charged.

An encounter that turned into an attack

Smith was in his freshman year at Bethany College, a small Lutheran school a couple of blocks from his home, and he used to hang out with Stolzenburg and play board games.

One night in February 2018, they ended up in the bedroom in Stolzenburg. They kissed and began having sex, Smith told the BBC. Suddenly, he slapped her, she says, then grabbed her by the neck and, according to her, started raping her.

“He was trying to get his hands off my neck, and I looked into his eyes, and he had a look that I had never seen before,” he says. “He was not the person I thought was my friend. He was a dangerous person ”.

Smith believes that Stolzenburg tried to assassinate her.

He was so scared, he said, that he thought it best to stop fighting.

“You stand there and just let it happen,” he says.

“I did what I had to do to survive.”

When describing what happened that night, her voice was firm, as if she were recounting things that had happened to someone else. He was looking into the distance as he spoke.

Smith went to the police soon after, and after several weeks they called her to see a county attorney, Greg Benefiel.

He made it clear that he wanted to press charges, he says, but Benefiel saw things differently.

Benefiel said he would not bring a sexual accusation against Stolzenburg, and instead filed charges of aggravated battery. Benefiel did not respond to requests for comment for this story.

In 2020, Stolzenburg was sentenced to two years of probation and had to pay $ 790 in restitution, a sum that went to a victim compensation board.

A new legal path

After the prosecutor refused to press rape charges, Smith decided to use the old law that allowed him to convene a grand jury. His mother had found out about this formula while listening to a podcast.

In most of the United States, only a judge or prosecutor has the power to summon a juryBut Kansas, along with Oklahoma, Nebraska, and three other states, allow citizens themselves to convene one.

To do so in Kansas, a resident of the state must circulate a petition and collect a certain number of signatures. The number varies from county to county, but is calculated based on the number of people who voted in the last gubernatorial election.

The person leading the petition must collect signatures equal to at least 2% of the number of votes, and an additional 100.

Smith’s petition was posted in bars and cafes around the city and, after several months, he got a sufficient number of citizens to support his petition.

Previous grand juries

Members of grand juries are chosen from people who have a driver’s license or are registered to vote.

The members act as police officers, examining evidence. Sometimes they cite documents from the defendant. Other times, they just look at the evidence that police officers have gathered.

Therefore, they do not call the accuser, nor the accused before them.

Kansas law dates back to 1887 and was designed to ensure that people who have no money or power have a chance to hold someone accountable for their actions.

“It’s a way to make sure all citizens have access to the legal system,” says John Mullen, associate professor of philosophy at Bethany College.

Citizen grand juries in Kansas have previously been called out of discontent with artwork displayed in public, because someone viewed a sculpture as indecent, or to demand investigations into doctors who perform abortions.

But no grand jury appears to have ever been called to decide whether to press charges for a sex crime.

The jury has 60 days to conduct its investigation in closed and confidential proceedings.

If charges are filed, the case would be handled as a standard criminal matter.

The defendant pleads guilty or not guilty in a traditional jury trial.

A debate on consent

Smith is now married and works as a medical assistant in a family care center. He has become a recognizable figure in Lindsborg, his hometown, a secluded place surrounded by wheat fields.

Sitting in a Main Street bar a few nights before the grand jury met, she reflected on the events of the past three years.

“He tried to hurt me a lot, and in a way he did,” he says of Stolzenburg. “But I also came back to fight, and I don’t think he saw it coming.”

Some have applauded Smith’s efforts to push for the convening of a citizen grand jury and believe it will help strengthen determination of other women who went to the police, after feeling raped or sexually assaulted.

Lindsborg activist Caroline De Filippis says women need more protection. “Many cases of lack of consent are still dismissed, or not even brought to justice, because they do not have ‘enough’ [evidencias]”.

“The definition of consent is still very broad,” he added, “and does not show an understanding of what it means to be sexually assaulted.”

Others, however, caution that this procedure could easily be abused. Laura Kipnis, author of Unwanted Advances: Sexual Paranoia Comes to Campus, said investigations of sex crimes on campus raise a number of problems.

Incidents take place in private and it can be extremely difficult for grand jury members to reach a conclusion. “It’s almost impossible,” he says. “They are guessing.”

Investigations can also be devastating for accused men, he says, even when they are exonerated: “Their lives are shattered.”

Life in Stolzenburg has certainly changed.

Her voice on the phone is strained and you can tell she was fighting back tears.

He was suspended from Bethany after the attack for violating the university’s student code and lost his job at a record company.

“At the time, I was 19 years old and new to sex and intercourse,” he says. He maintains that his attack on Smith was an attempt to depict a “sex scene” that he had seen on the internet.

“I thought it would be something I could try, and I was stupid to do it,” he says.

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