By Jessie Wagoner
According to the Kansas Bureau of Investigation, for every 1,000 sexual assaults, fewer than 250 are reported to law enforcement. Fewer than 50 of those reports lead to an arrest, and fewer than 10 offenders are ever convicted. For survivors of sexual assault, like Madison Smith of Lindsborg, the road to justice can be long, and their case may never be heard by a jury.
From her perspective
On Feb. 11, 2018, while Smith was a student at Bethany College, she reported she began a consensual sexual encounter with Jared Stolzenburg, a fellow student at Bethany College. Though the encounter began as a consensual act, as things progressed, Stolzenburg began to choke Smith and strike her in the face. She says she wanted the incident to stop and tried to remove his hands from her neck, as she was unable to talk or breathe, but was unable to and began to lose consciousness.
Following the incident, Smith filed a police report and went to the hospital to have an examination by a trained sexual assault nurse examiner. Bruising around her neck was documented, and the report was forwarded to the McPherson County Attorney’s Office for review. Smith reports little progress was made and charges were not filed. Months after the incident, County Attorney Greg Benefiel asked to meet with Smith.
“County Attorney Greg Benefiel, who is prosecuting the case, asked to meet privately with Ms. Smith, telling her his office could not move forward with charges of rape or sexual assault and calling what happened to her ‘immature sex,’” Justin Boardman, a retired police detective with Boardman Training and Consulting who is working with Smith, said.
While Benefiel did not file rape or sexual assault charges, he did file a formal complaint against Stolzenburg on Sept. 17, 2019, charging him with one count of aggravated battery, a level seven person felony. Stolzenburg pled guilty to the charge of aggravated battery on June 4 and is scheduled to be sentenced on Aug. 21.
The McPherson News-Ledger reached out to Stolzenburg for comment. Stolzenburg advised his attorney directed him to not comment and instead referred the News-Ledger staff to Benefiel to answer questions.
Smith does not believe justice was served through the legal system. She has pursued other avenues for seeking justice, including a petition drive to enact a seldom-used statue that would allow a grand jury to be called to review her case and make charging decisions. Smith filed her petition with the court for a grand jury, but it was denied on June 4, the same day Stolzenburg pled guilty to aggravated battery.
Benefiel stands by his original charging decision. He is unable to discuss details or provide additional information because the case is still pending.
“I believe the appropriate charges were filed in this case,” Benefiel said.
Smith is not alone in her feelings that justice hasn’t been served. Data released by the Kansas Bureau of Investigation finds that out of 1,000 sexual assaults, fewer than 10 offenders are ever convicted.
“An overwhelming majority of sexual assaults do not end in conviction,” Kathy Ray, director of advocacy, Education and Rural Projects with the Kansas Coalition Against Sexual and Domestic Violence, said. “They can be difficult to prosecute.”
Ray explains that before DNA became prominent, offenders would use a denial defense—flat out denying the assault ever occurred. Now that DNA can be used during prosecution, the majority of offenders use a consent defense, maintaining the encounter was consensual.
Another barrier to prosecution comes from antiquated statutes regarding rape and sexual assault. The statutes were created years ago and do not address consent or include sexual assault of men.
“Our rape statutes in Kansas need an overhaul,” Ray said. “We do not have a definition of consent in our rape statute, which is problematic.”
Justice in other ways
Since Smith and Stolzenburg were both students at Bethany College at the time of the incident, Smith was able to file a Title IX complaint with the college. Bethany College conducted a Title IX investigation, interviewing Smith, Stolzenburg and others.
On Feb. 23, 2018, Cheri Lindsay, investigator with Bethany College, issued a summary of findings in the investigation.
“After reviewing all the information, my determination is that the intercourse between Madison and Jared started out consensual, but it did not end that way, “ the document reads. “Jared Stolzenburg did not deny the fact that he choked and slapped Madison during intercourse. Jared indicated that he believed the entire occurrence was consensual.”
In light of the findings, it was determined that, by a preponderance of the evidence, Stolzenburg violated the college’s Sexual Misconduct Policy and Complaint Resolution Procedures. Stolzenburg was suspended from Bethany College.
Smith continues to work with Boardman Training and Consulting as well as a private attorney to explore other avenues to pursue charges. She would like to have her case presented to a jury for consideration.
“I just want a chance for the case to be heard in court and a chance for justice,” Smith said. “I want to change the status quo for other women so they don’t have to go through this, too.”
A public safety issue
Rape and sexual assault has historically been viewed as a person crime, a personal issue, which is rarely talked about. Ray says a culture shift in how communities and the criminal justice system views sexual assault is needed.
The Kansas Bureau of Investigation has found 63 percent of sex offenders commit more than one rape, with a serial offender committing an average of seven rapes each year. Additionally, by the time a serial sex offender has a first conviction, they have committed an average of 49 rapes. If never convicted, a serial sex offender will commit an average of 196 rapes.
Additionally, sex offenders aren’t just committing sex crimes. They are known to commit other acts of violence in the community. Research has found 58 percent of sex offenders commit other acts of violence, like domestic battery, assault, harassment, stalking and homicide.
“Sexual assault is a public safety issue,” Ray said “If you want to increase safety in your community, you need to investigate and prosecute rapes.”