Criminal - The Petition

Episode Date: September 6, 2024

When Madison Smith went to her county attorney’s office to talk about her rape case, she knew she wanted to press charges. But the prosecutor told her he wouldn't bring a rape charge. Then she discovered a loophole in an old Kansas law. Say hello on Twitter, Facebook, Instagram and TikTok. Sign up for our occasional newsletter, The Accomplice. Follow the show and review us on Apple Podcasts. Sign up for Criminal Plus to get behind-the-scenes bonus episodes of Criminal, ad-free listening of all of our shows, special merch deals, and more.  We also make This is Love and Phoebe Reads a Mystery. Artwork by Julienne Alexander. Check out our online shop. Episode transcripts are posted on our website. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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This episode contains a detailed description of sexual violence. Please use discretion. I always feel like this is the hardest part because I never know what to say about myself. Well, my name's Madison Smith. I'm in nursing school right now. I have about a year left. I've been married for almost three years. And I have a wonderful family.

And probably my littlest best friend would be my one-and-a-half-year-old niece. Madison Smith grew up in Lindsburg, Kansas. Lindsburg is a small town with just under 4,000 people. I mean, this is a place where you turn a corner and you see somebody you know. You don't really see strangers in this town, and everybody kind of looks after each other. It's got a very homey feel wherever you go in town. Do people kind of know each other's business a little bit? I would say some people know some people's business. It's not very, like, I don't know everybody's business. But there's, you know, your small town gossip that the rumor mill goes around town.

What about your family, your parents? Were you always close to them? Oh, yeah. My parents and I have always been super close. I know you're not supposed to be, like, best friends with your kids or anything, but it always kind of felt like my parents were. Madison liked living in Lindsberg, but when she started looking at colleges, she thought about leaving Kansas.

I did have this wild dream of going to Clemson University in South Carolina when I was growing up, and I loved, I went on a visit there with my aunt, and I loved it. I fell in love with the campus, but that out-of-state tuition, it'll get you every time. It's really expensive. So I ended up obviously not going there. Instead, Madison went to Bethany College, a small Christian school three blocks from her house. She planned to study biology, and she made a good group of friends. They did game nights every Wednesday and studied in the dorm together after classes. On February 11, 2018, during her second semester of her first year, Madison spent the day with her parents and friends and then headed back to the dorm. And I was like, you know what, I'm going to go do my laundry.

And so I go up to my room and I grab my hamper of laundry and I wander down to the laundry room on the first floor. And in there I see one of my friends, Jared, who I was like, oh, hey, what are you doing? He's, you know, getting ready to go fold laundry. And so I started my laundry and he asked if I wanted to come upstairs and wait with him in his room. And I said, yeah, let's hang out while I'm waiting. Might as well. And we were listening to music.

He grabbed me a beer, which I didn't even drink half of because I don't like beer. But we started hanging out started making out um it progressed to we started to have sex which was consensual up until the point he put his put his hands around my throat and started to squeeze he started to strangle me and i had my hand on his wrist and I tried to pull it away and his grip got tighter. He slapped me multiple times across my face, strangled me for probably 20 seconds at a time, multiple times to the point it left bruises on my neck and chest. At one point, he stood up and grabbed me by my hair, and he yanked me up to a sitting position and forced me to turn around and get on all fours. And at that point, he attempted to penetrate me anally. And I don't know how I got dressed in a hurry. But before he even went to the bathroom, he said, well, that just happened.

And I'm like, that's all you have to say? Like, I know in the back of my mind, he doesn't think that he did anything wrong in the middle of it. But and I'm not even fully convinced at this point that I had been raped. So I needed to talk to somebody. I didn't want to be alone because it just felt weird. She saw a text from one of her friends, Alana. Madison went to Alana's room and told her what happened. And at that point, she had me write down what I had felt, what happened, and how it was making me feel. And then I showed her the bruises, and she just started crying with me. And then I stayed with her for most of the night, but eventually went back to my dorm. And it wasn't until the next day, so it would have been February 12th of 2018,

I was sitting in my human anatomy and physiology class, and I get a message from Alana, and she had been checking in on me all day, so I just wanted to let her know I was fine real quick. So I open it up, and she goes, Maddie, I talked to my mom, and her mom's an EMT. And she goes, I really think we need to tell your parents what happened. You were raped.

You 100% were raped. We need to tell somebody what happened. And it wasn't until I read the words, Maddie, you were raped, that I believed it. In 2021, Jared Stolzenberg told the BBC that he regretted what happened. He said he had been rough with Madison. He said he was, quote, new to sex and wanted to try a, quote, sexual kink he'd seen online.

He said he was, quote, stupid to try it, but he maintained that it had been consensual. After she read Alana's message, Madison told her parents she'd be coming home for dinner. Alana came with her. When they got to her house, Madison's father was in the driveway. Her mother was on the way. Madison wanted to wait and tell them at the same time.

She remembers watching her mother walk up the driveway. And she could tell that something was weird. And I just kind of looked between her and my dad for a second, and I just ripped the band-aid off. I said, I think I was raped. It was devastating. I remember asking questions as quick as my head would spin. Who did this to you? What happened? When was this? Are you okay? What do I need to do? I didn't even know where to begin. Mandy Smith, Madison's mother. Madison's father had been a police officer

and asked her if they could call the chief of police. Madison said yes. The family sat around the dining room table, waiting. An officer arrived to take her statement. She also gave him the written account she'd made the night before in Alana's room. I think it was difficult for Madison to tell us what had happened and that the sex had started out consensually. I think she wanted us to not think less of her for being sexually active, which we never

would have. But, you know, sometimes those are conversations that are difficult to have with your parents, especially when you're a freshman in college, and then to have to keep telling the story of what happened over and over again to the different, you know, the different agencies, the different people with her parents there. I can't quite imagine how difficult that must have been for her. The police officer who came to their house asked if Madison wanted to take a SANE-SART exam. SANE stands for Sexual Assault Nurse Examiner, and SART is Sexual Assault Response Team. During an exam, evidence is collected for a rape kit.

Madison said yes. In the little town of Lindsberg, we don't have a SANE-SART team at the hospital here, so we had to drive out of town for this. They drove to the ER in the next town. And I went back there and I had pictures taken of my body inside, outside, head to toe, front to back, the whole nine yards. Madison remembers liking the nurse who did her exam. She made her feel comfortable. She even made her laugh. A sane exam can take hours

and can include taking samples of DNA from all over a victim's body, from fingernails, mouth, and genitals. The nurse noted in Madison's exam that she had bruising on her neck and the back of her throat. Madison decided she wanted to press charges. People convicted of rape in Kansas are added to a public registry.

She says that was important to her. She had a meeting scheduled with the county attorney to talk about what would happen next. Before I met with the county attorney, I was expecting him to say, these are the charges we're going to file and here's when we're doing it. In my 19-year-old mind, I thought that that's how the world should work and that's what should be done. When Madison met with the county attorney, she brought her parents.

But when they got to the office, the attorney asked to speak with Madison alone. Which, weird. Like, I understand that I'm legally an adult at 19 years old. But anyway, I start speaking with him, and the first thing he said to me was, I'm not pressing charges because this wasn't rape. This was immature sex. In my mind, I'm like, well, one, what the hell is immature sex? Like, that's not a legal term.

Why are we using that? We reached out to the county attorney for clarification and didn't hear back. Madison remembers he explained that because the sex had started consensually and Madison never verbally withdrew consent, he would not prosecute what had happened as rape. Madison thought that didn't seem right. She says his hands had been around her throat and she couldn't speak. Like, I read more on consent and I always knew that you don't do something without somebody's

permission, but I never really thought about that in the sense of sex and my, like, my permission of something, somebody to do something with me. And I'm not saying that I haven't been educated on it. It's just, I guess my brain didn't make that connection. So I read more on consent and what rape is and what it isn't. And I knew. But without the county attorney prosecuting, Madison's case couldn't go anywhere, so they left. We actually all had to drive separately because my dad had to go to work and I had school,

so we were all in separate cars, actually, and I was on my way back home, and I said, well, that's that, I I guess he got away with it that sucks and I was already in therapy at this point my mom had me in therapy the by it was on Valentine's Day I had my first therapy appointment so um I was like I'll just continue with therapy and see what happens. I'm Phoebe Judge. This is Criminal. We'll be right back. What software do you use at work?

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to give you a primer on how to integrate AI into your life. So, tune into AI Basics, How and When to Use AI, a special series from Pivot sponsored by AWS, wherever you get your podcasts. How is Madison doing in the weeks after the assault? Madison was, the thing that I remember being really concerned about with her is that she seemed numb. That she would tell her story and it was almost like it was on autopilot and there weren't any emotions involved and that worried me. Madison tried to go back to school but she couldn't sleep in the dorm anymore and so she moved back in with her parents. A few days later she had her first panic attack.

Madison's mother Mandy kept thinking about what the county prosecutor told them. I knew he was so terribly wrong. She went back to his office. She wanted to talk through the results of Madison's rape kit and her written statement. But the county attorney said the same thing, that he wouldn't bring a rape charge. Bethany College did its own investigation under Title IX. Title IX is a federal civil rights law that was signed by President Nixon in 1972. It prohibits discrimination at schools and colleges based on sex, including sexual harassment and sexual violence. Bethany College found Jared

Stolzenberg in violation of its sexual misconduct policy and complaint resolution procedures. He was suspended and later expelled. Was the county attorney's response to Madison unusual? Oh, sadly, no. Justin Boardman is a retired detective and advised Madison and her family on her case. He spent seven years working in a special victims unit in Utah where he would interview victims of rape and domestic violence. But he didn't feel his training had prepared him well. He realized he was approaching victims with the same instincts as he did suspects.

And basically my view on these types of crimes changed, and I learned some things that I had been doing my job wrong, and I had created a whole lot more harm. The issue was misreading the way that survivors present to law enforcement when something traumatic happens to them. And I was misinterpreting it because I was trained when it came to interviewing suspects, you kind of get those hinky feelings and you start hearing what they're telling you and it doesn't make any sense and they can't get their stories straight. But our victims were doing the same thing. A number of studies have shown that it's normal for victims of sexual assault to act unemotional after they're attacked. They might even forget the details of what happened. They might be able to laugh and joke around.

But we weren't trained to see that. We didn't know what we didn't know. He says victims of rape also don't always act the way law enforcement expects them to during an attack. I mean, you can take Madison's case, for instance, right? When the assault started, his hands went around her throat, and she went into what we call tonic immobility or collapsed immobility. And we all in most society would go, you know, if that happened to me, I'd fight back. I would kick. I would scratch.

I would do X, Y, Z. In all reality, over 50% of survivors don't fight back. And so, it's very counterintuitive to prosecutors, to law enforcement, even to survivors themselves, because the guilt that, you know, I was taught that I should scream or fight back, and they can't control that part of the brain. And it brings a lot of guilt. Justin Boardman left law enforcement. He started to run trainings for other police officers on how to better understand people who report sexual assault and violence. But most people never go to the police in cases of rape, and most rape cases don't end with a conviction.

In the United States, it's less than 1%. One study funded by the National Institute of Justice analyzed thousands of rape cases across the country to figure out why they weren't resolved through a jury trial. The principal investigator of the study said, quote, a lot of times detectives felt like they had really good, solid cases with enough evidence to make an arrest, but prosecutors declined to go forward. The study found cases where prosecutors declined moving forward based on their own sense of a victim's credibility. It found that some prosecutors thought a jury was less likely to convict

if alcohol or other, quote, risky behaviors were involved. Prosecutors also seemed less likely to pursue so-called he-said-she-said cases. So the law, that's why they call it an art form, because there's no hard boundaries when it comes to filing a case. I believe that, you know, a local prosecutor is one of the most powerful people in the United States.

The county attorney in Madison's case told the Associated Press that sex crimes are, quote, extremely challenging to prosecute because the jury looks for, quote, that CSI type of evidence. In September 2019, over a year after Madison first met with the county attorney, she learned that he had decided to charge Jared Stolzenberg with aggravated battery for strangling her. He told the Washington Post, quote, Jared Stolzenberg pleaded guilty. He received two years probation. We reached out to Jared Stolzenberg for this episode, and he told us, quote, I want to start off by saying

that I genuinely wish Madison and her family well, and I'm extremely sincerely sorry for all negative and harmful instances I have caused her and her family. He went on to say, quote, At the sentencing hearing, Madison said she felt grateful for some sort of conviction, but she told the judge, quote, I feel angry that he was not charged for the sexual side of this. Madison and her family weren't ready to let it go. A few months before, Madison's mother had heard Justin Boardman on a podcast.

I sent Justin Boardman a quick Facebook message after hearing him. I didn't ask him really any questions. I just told him that he had made me feel like I wasn't crazy for feeling the way I felt over the last several months. Mandy and Justin eventually met in person, and he started to help Madison and her family think about other ways she could have a chance to present a rape charge to a jury. Then they came across an old law in Kansas. From like the 1800s, but it's still on the books and it looks like some people have tried to use it a few times.

The law says that a Kansas citizen can convene their own grand jury. The grand jury law in Kansas states that you can petition to have evidence heard in a case and let a jury of your peers decide if there is enough evidence to bring charges forward. and it is kind of a backdoor through the justice system and a way around the prosecutor. The law was used during Prohibition by people who wanted to investigate bars that kept serving liquor, while state officials seemed to look the other way. In the last few decades, it's also been used by anti-abortion activists to go after clinics. Kansas is one of only six states where citizens can petition to do this, as long as they collect a certain number of signatures. Basically, there's a mathematical equation, something like 2% of the registered voters who voted in the last gubernatorial race in Kansas, plus 100.

Which means Madison would need signatures from 329 registered voters to convene a grand jury. I was scared because having to tell over 300 strangers, because I needed their support about what happened to me seemed so scary. While Madison thought about whether she wanted to use the old law, she said she heard about another woman in town. She said she'd also been raped and had also wanted to take her case to trial, but said that she'd heard the same thing from the county attorney. So at that point, I was like, all right, let's collect these signatures. Let's do this. Madison and her family made a plan. So we set up in front of a hair salon

in Lindsberg. And to make things harder for us, it was in the middle of COVID. It was 2020. So we hosted a BYOP, bring your own pen event. But But we also had pens, and we're sanitizing them in between everything and wearing masks in the whole nine yards and made ridiculous signs. And we had a ladder that was stood up and had balloons all over it and streamers, just something to attract people's attention, really, is what it is. Some of the people who walked by knew Madison and her family, but a lot of people didn't know anything at all. The streamers and balloons worked to get people to stop.

And I'd say, hi, my name is Madison Smith. I was raped at Bethany College campus, and the county attorney said, and they said, say no more. Where do I sign? Like, that was so encouraging and just so amazing to have complete strangers just support you at, I don't know, what was that, 10 words, 15 words I said, and they're like, say no more. A lot of people would disclose incidents that they had been through to us, which caught me by surprise. I don't know that I expected to become that soft landing spot for people, but I was more than happy to do that. A few people were kind of rude about it.

Usually men, they would be a little bit defensive. I do specifically remember one woman telling me, if you weren't snatched by somebody that you don't know, then it wasn't right. Madison and her family stood outside the hair salon for six hours, telling people what had happened. I don't want to say it got easier, but I became numb. Like, I almost became a robot at that point. Like, hi, my name is Madison, and this is what happened to me. Will you please sign my petition so I can get this?

That's kind of how it felt like it went for a little while. Madison says they collected just under 200 signatures that day. They still needed over 100 more. And over the next few days, if Madison or her family heard of anyone who was willing to sign, they would go to meet them wherever they were. So we were driving all over our county, all over this county, to get people to sign it for us. Eventually, they got the full 329, and they sent their petition to the district for review. But just a few weeks later, they learned it was rejected it was so defeating to know that we

worked so hard to collect over 300 signatures of registered voters in our county and it got denied it was so defeating because i was like we did all that work for nothing. Nothing. It was awful. The petition was denied because they'd missed one detail. Because I didn't sign every single sheet of the petition. Just a technicality? Absolute technicality. So what did that mean? It meant we had to start all over again. There were, I mean, multiple times throughout all of this, there were multiple times where I was just, I'm ready to be done. I'm ready to be human again. And not feel like I am a rape survivor and that was my personality.

Because at some points, that is what it felt like. Madison remembers that around this time, she'd heard about another person who'd heard the same thing from the county attorney's office about their rape case. And I was like, screw it, let's go again. We'll be right back. Are you looking to eat healthier, but you still find yourself occasionally rebounding with junk food and empty calories? You don't need to wait for the new year to start fresh.

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each hotel tells its own unique story through distinctive design and immersive experiences, from medieval falconry to volcanic wine tasting. Autograph Collection is part of the Marriott Bonvoy portfolio of over 30 hotel brands around the world. Find the unforgettable at AutographCollection.com. Since Madison had already told her story to hundreds of people to collect their signatures for her first petition, she and her mother decided to reach out to some of them again.

I remember Madison and I sitting there at our breakfast table one evening and just messaging people that we didn't know that had signed the original petition. I just found them on Facebook and I messaged them and I'm like, hey, I don't know if you remember me, but you signed my petition about calling your grand jury for my rape case, but it got denied and I want to do it again. Can I meet you somewhere to have you sign it again? And everybody's like, oh yeah, absolutely. Let's meet up here at this time on this day. It was great. So it was almost easier the second time around, but yeah, it's again, just complete robot of me. Just, hi, my name's Madison. Can you please help me? Madison was babysitting for a family friend when she found out that the state had accepted

her second petition. How long had it been at that point? I think from the night of being raped to the point where the grand jury got accepted, it had been, let me count, I think it had been three and a half, four years. A grand jury was summoned to hear Madison's testimony in October 2021. Fifteen jurors were selected, just as they would be for a district court.

They were given instructions by the district court. Their job was to determine, quote, whether the facts support allegations warranting a true bill of indictment. So what happened was the grand jury was convened. I don't, it's all very, very, very secretive. So there's no way for us to really, even today, ever know what exactly went on in that room that day or whatever days they met.

But the day that my mom and I testified, it was in an old bank building in McPherson. And I'm sitting, we're sitting at this long, like, almost like those white picnic tables that you see at, like, churches. We're sitting at one of those. And then across the rest of the room, there's the jury. Madison remembers that the jury wrote down their questions on a piece of paper and gave them to an attorney to ask her. She said they asked why she felt like an additional charge needed to be brought, beyond the aggravated battery charge. They asked her to recount the night again.

They asked if she had gone to therapy. She testified in front of the jury for almost an hour. Her mother had to wait outside. And when her mother testified, Madison had to wait outside too. The rest of the proceedings were kept confidential, so they don't know who else testified, but they said they heard that the grand jury also questioned Jared Stolzenberg and the county attorney who declined to bring a rape charge. The police officer who'd first taken Madison's statement told her that he'd testified.

After Madison appeared before the grand jury, she went back to her job at a local health clinic. About two weeks later, she got the jury's decision. When I found out about the decision of the grand jury, I was at work and I get an email from Jeff, one of the attorneys who represented me. And I saw a grand jury decision and my coworkers had all known what I was going through. And I was like, I should be hearing any day. And I looked at them, I looked at my coworkers and I said, this is it. I need to go read this, but I don't want to be right here right now. And so I stepped into our little med room real quick and I saw that they came back with no true bill, which means nothing else was happening. And we're at where we are today. And I wanted to cry, but I still had a little bit of my work

day to get through. So I just went out there and I told my coworkers and I said, it's not happening. And I said, I don't know how to react. I don't know what to say. So I was like, I really just need to move on about my day like it's any other day right now because I don't know what else to say. The grand jury's decision didn't come with an explanation. Madison had already graduated from Bethany College. She'd gotten married to her boyfriend, and they'd moved into their own house a few minutes away from her parents.

She felt ready to move on with her life. She told the Washington Post, From the very beginning, I have said I want my day in court, and I got it. Even though it didn't go the way I hoped, I know I tried as much as I could. Today, she's almost done with nursing school. I have a year left of school, and then I'm going to go get some experience under my belt, and I want to become SANE-SART certified.

Madison says she wants to start a mobile SANE-SART unit that can go to small towns so victims don't have to travel. The nurse who did her SANE exam was one of the first people she felt comfortable with after what happened. She says she still thinks about how the nurse made her laugh. Criminal is created by Lauren Spohr and me. Thank you. Our show is mixed and engineered by Veronica Simonetti. This episode was mixed by Emma Munger. Julian Alexander makes original illustrations for each episode of Criminal. You can see them at thisiscriminal.com.

And you can sign up for our newsletter at thisiscriminal.com slash newsletter. We hope you'll join our new membership program, Criminal Plus. Once you sign up, you can listen to Criminal episodes without any ads, and you'll get bonus episodes with me and Criminal co-creator Laurence Boer, too. To learn more, go to thisiscriminal.com slash plus. We're on Facebook and Twitter at Criminal Show, and

Instagram at criminal underscore podcast. We're also on YouTube at youtube.com slash criminal podcast. Criminal is part of the Vox Media Podcast Network. Discover more great shows at podcast.voxmedia.com. I'm Phoebe Judge. This is Criminal. The number one selling product of its kind with over 20 years of research and innovation. Botox Cosmetic, Adabotulinum Toxin A, is a prescription medicine used to temporarily make moderate to severe frown lines, crow's feet, and forehead lines look better in adults. Effects of Botox Cosmetic may spread hours to weeks after injection causing serious symptoms. Alert your doctor right away as difficulty swallowing, speaking, breathing, eye problems, or muscle weakness may be a sign of a life-threatening condition. Thank you. asthma symptoms, and dizziness. Tell your doctor about medical history, muscle or nerve conditions, including ALS or Lou Gehrig's disease, myasthenia gravis, or Lambert-Eaton syndrome in medications,

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