The citizen's Grand Jury

Madison Smith and her mother, Mandy, in front of 

the McPherson County Courthouse - Mandy says she was was raped

An article the Washington Post published today describes a story of a woman, Madison Smith, who she alleges was raped. The local prosecutor declined to prosecute for rape and so Smith convened a grand jury on her own. Kansas law allows for that.

This discussion relates back to the recent post here about the history of mass incarceration and the vast power that prosecutors have to prosecute or decline to prosecute.

Unlike the cowards, corrupt sleazeballs and cockroaches that run the modern corrupt, immoral Republican Party, Ms. Smith appears to have real guts and an actual moral compass. The WaPo writes:

For three years, the local prosecutor has resolutely refused to make her case: that what began as consensual sex in a college dorm room became a rape, and that she was unable to say “stop” because her classmate was strangling her.

But Smith invoked a vestige of frontier justice that allows citizens in Kansas to summon a grand jury when they think prosecutors are neglecting to bring charges in a crime. The law, dating to the 1800s, was originally used to go after saloonkeepers when authorities ignored violations of statewide prohibition. The 22-year-old graduate is believed to be the first to convene a citizen grand jury after a prosecutor declined to pursue a sex-crime charge.

Only five other states, all in the Great Plains or the West, have similar laws still on the books. The Kansas statute requires an individual to gather a certain number of signatures of support, which forced Smith to relive her trauma over and over in conversations with strangers.

For three years, the local prosecutor has resolutely refused to make her case: that what began as consensual sex in a college dorm room became a rape, and that she was unable to say “stop” because her classmate was strangling her.

Statistics show that most sex crimes don’t result in charges. Victim advocates blame cultural issues, halfhearted investigations and the broad discretionary power of prosecutors. “This is a problem across the nation,” said Kathy Ray of the Kansas Coalition Against Sexual and Domestic Violence. “There are gaps throughout the system.”

Unlike Smith, most victims have no way to seek justice when they feel a blind eye is being turned toward a crime. Only five other states, all in the Great Plains or the West, have similar laws still on the books. The Kansas statute requires an individual to gather a certain number of signatures of support, which forced Smith to relive her trauma over and over in conversations with strangers.

“The one person who I believed was supposed to fight for the victim on the legal side has pushed me aside, stalling, and waiting for me to give up,” Smith wrote in one statement to the court. “This is a common tactic used by defense attorneys, but now the prosecution. I won’t ever give up. Ever.”

It happened at Bethany College, a small Christian liberal arts school in Lindsborg, an hour north of Wichita. She had bumped into a friend, Jared Stolzenburg, while doing laundry in a dorm. They went to his room, talked some, started kissing. They progressed to sex — by mutual consent, she acknowledges.

Almost immediately, Stolzenburg began slapping her face and strangling her while continuing intercourse, according to court records.

“I tried to initially pull his hands off of my throat, and he squeezed harder every time,” Smith recounted in one 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 day after the assault, the college freshman stood in the driveway of her parents’ house three blocks from campus. “I was raped last night,” she told them, tugging down the collar on her hoodie to reveal a necklace of purple bruises.

Her parents called police and drove her to a nearby hospital for a forensic exam. The report noted the bruising and abrasion on her neck, as well as bruising inside her mouth. 

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

A former Minnesota prosecutor reviewed Kansas law for the Smiths and concluded that the attack qualified for a rape charge.

“I would contend that it is clear that if while strangling someone, they are pulling on your hands and gasping for breath, and they are crying, none of that sounds consensual to me,” said Julie Germann, who specialized in sexual assault cases. “I would not have a hard time taking that case to a jury at all.”

In my opinion, this case shows how limited the reach of the rule of law often (usually?) is. Nothing humans can design will be flawless. Science makes the reasons clear. The human mind is not a rational thinking machine. It is a biased, rationally flawed reality-distorting machine that evolved to make inconvenient facts, truths and reasoning go away as much as possible, thereby reducing cognitive dissonance (psychological and social discomfort) as much as possible.

Questions: Is it time to try to at least partly counteract the grossly excessive power and discretion of prosecutors by allowing all Americans to convene their own Grand Juries when they are denied justice? Or, is the "presumed innocent" deck so heavily stacked in favor of criminals, racists, rapists, and biased prosecutors and police that it is pointless? 

How can Ms. Smith prove that she was crying and trying to remove Stolzenburg's hands from her throat because, after all, that is just a he said, she said situation, i.e., the law does not allow a conviction of the frisky (or vicious) Mr. Stolzenburg? Does anyone see the severe limits of the reach of the law here? Are we forever hobbled by the he said, she said stalemate that almost always leads the male to being acquitted? Compared to the converse, not many women rape men.

Why is so much fornicating going on in morally pristine Christian colleges? Are at least some Evangelical Christian students just garden variety immoral hypocrites, including Ms. Smith? Does it matter if people like me who are sympathetic to Smith raise these questions or (i) people who reflexively see Smith as a liar, or (ii) point to the impossibility of deciding in cases of he said, she said under current law?

On balance, are prosecutors enemies of the people?