Columbia University rape controversy

Emma Sulkowicz

Emma Sulkowicz (born October 3, 1992 in New York City), is of Chinese, Japanese and Jewish descent. She is the daughter of Sandra Leong and Kerry Sulkowicz, both psychiatrists from Manhattan. She attended Dalton School on the Upper East Side, where she was an A student and competitive fencer. In 2011 she began her undergraduate studies at Columbia University as a visual arts major.

Paul Nungesser

Paul Jonathan Nungesser (German: Nungeßer; born 1991 in Berlin) is a German citizen who studied architecture at Columbia, the son of Karin Nungesser and Andreas Probosch. Nungesser is a journalist for the National Council of German Women's Organizations and a feminist blogger. Probosch is a primary school teacher in Kreuzberg.

Background

In 2011, during the Columbia Outdoor Orientation Program, a freshman pre-orientation, Nungesser and Sulkowicz met and became friends. They both separately joined a co-ed fraternity, the Alpha Delta Phi Society, later that year.

Allegations by Sulkowicz

On April 18, 2013, Sulkowicz reported to Columbia's Office of Gender-Based and Sexual Misconduct that, on the first day of her sophomore year on August 27, 2012, in her dorm room, she was raped by fellow student Nungesser.

Describing the alleged rape, she said that what began as a consensual sexual encounter in her room turned non-consensual. She alleged that Nungesser choked her, slapped her face, held her wrists, and anally raped her, while she struggled and told him to stop. Sulkowicz said that after the alleged assault, Nungesser immediately left the room without speaking.

He and Sulkowicz both corroborate that they had consensual sex twice before, earlier in the year, but not anal sex. Nungesser said that the encounter in August was also entirely consensual, and he denied the allegations of violence, stating that they briefly had consensual anal sex, followed by other sexual activity, after which they fell asleep, saying he left her room early in the morning while she was still sleeping.

Afterwards they communicated via Facebook messages. Nungesser later described these messages as "amiable" and showed transcripts of these messages to Cathy Young, a contributor for The Daily Beast who has been critical of campus sexual assault activism. Sulkowicz expressed concern that the messages would be used to present her as unreliable, and stated she had sent them because she was upset and wanted to talk to him about the incident but decided against doing so. By the time of her last message, which she sent in March 2013, she said she had visited the university's Office of Gender-Based Misconduct and that they had asked whether she had tried talking to the accused. A university spokesperson said in February 2015 that its gender-based misconduct policy does not recommend informal resolution or mediation for such complaints.

In response to criticisms regarding her delay in reporting, Sulkowicz said she initially didn't report the incident to avoid "emotional trauma" and stated:

In early 2013 Sulkowicz discussed the incident with "Natalie", Nungesser's former girlfriend. Natalie alleged that there had been non-consensual sex and emotional abuse during her relationship with Nungesser, which lasted from October 2011 to spring 2012. Nungesser denies that charge and describes their time together as a couple as a "difficult relationship". Sulkowicz said that the conversation with Natalie prompted her to file a formal complaint to the university. She filed her complaint on April 18, 2013 and Natalie filed one a few days later.

Allegations from others

Three other complaints have been alleged against Nungesser: a second woman accused him of emotional abuse and nonconsensual sex during a months-long relationship, a third student accused him of non-consensually kissing her and touching her at a party, and a fourth accuser emerged in early 2015, a fourth-year male student who said Nungesser sexually assaulted him after an emotional conversation. The second accuser's investigation was discontinued after she said she was "exhausted by the barrage of questions" and stopped responding to emails from the University's Title IX coordinator for sexual assault investigations.

The third complaint was initially decided against Nungesser, with an assigned punishment of disciplinary probation, but Nungesser successfully appealed, citing procedural errors and problems with the admission of hearsay. Nungesser further appealed on grounds that his accuser had failed to demonstrate guilt by a "preponderance of the evidence" as required in campus hearings. He says the allegations, which were all brought within days of each other, were the result of collusion and are fraudulent. The three women said in interviews with The New York Times that they decided to file formal complaints with the school after they heard about one another's experiences.

The fourth student, identified as "Adam", said he first reported the incident to the group to which they both belonged, and then he filed a Title IX complaint. Columbia also investigated the complaint and found Nungesser "not responsible". According to Cathy Young, the investigators found contradictions in Adam's statements and Facebook dialogs between the men.

Outcome of Sulkowicz's hearing, Nungesser's first complaints

On October 29, the day after Nungesser's third accuser's hearing, one was scheduled for Sulkowicz's case. In November the university found Paul Nungesser "not responsible". Sulkowicz's request for an appeal was turned down by the dean.

Sulkowicz and Nungesser both complained separately about the proceedings. Sulkowicz complained that Nungesser was granted months of postponements during the hearing, and that she was not allowed to discuss the case with anyone. She said that a university investigator asked inappropriate questions during the interview, and complained that the panel did not consider other allegations against the accused student. A graduate student who acted as Nungesser's official supporter during the hearing defended the panel disputed that their questions were inappropriate, saying the questions "were extremely personal because they had to be".

Nungesser complained that he had not been allowed to introduce Facebook messages as evidence. Nungesser and Sulkowicz exchanged several messages in the days and weeks after the alleged rape. In one message, two days after the alleged rape, Sulkowicz accepted an invitation to a party from Nungesser, writing: "I feel like we need to have some real time where we can talk about life and thingz, because we still haven't really had a paul-emma chill sesh since summmmerrrr." Sulkowicz says she sent the messages because she was upset and wanted to talk to Nungesser about the incident.

Reporter Katie Zavadski, writing for New York Magazine, opined that amicable exchanges with an alleged attacker didn't disprove that a sexual assault occurred, and Cathy Young acknowledged that victims of sexual violence may cope with trauma in ways that could seem puzzling to outsiders.

Press break, publicity, and federal complaint

The New York Post broke the story in December 2013, without naming either party. On April 7, 2014 Sulkowicz appeared with U.S. Senator Kirsten Gillibrand (D-NY) at a press conference about sexual assault on campus, telling reporters that she had been raped.

On April 24, Sulkowicz and 22 other students (later joined by five others) filed a 100-page federal complaint alleging that Columbia University and Barnard College mishandled their sexual-assault complaints, in violation of Title IX, a federal civil rights law to ensure gender equality on campuses. The complaint alleged that the universities were in violation of Title II, a provision against discrimination by a public body on the basis of disability, and the Clery Act, which requires federally financed universities to disclose campus crime statistics.

The Department of Education's Office for Civil Rights opened two investigations in January 2015 into the Title IX and Title II complaints against Columbia.

On May 3, 2014 an interview with Sulkowicz appeared on the front page of The New York Times. For several days from May 7 onwards, Paul Nungesser's name was included within lists of "sexual assault violators" written on the walls or doors of campus bathrooms, or on flyers. On May 14, Sulkowicz filed a report with the NYPD. Columbia's student newspaper, the Columbia Daily Spectator, controversially published the accused student's name two days later. The editors stated that they felt it would be "irresponsible to keep his name hidden", noting that Nungesser had been at the center of three sexual assault complaints as well as a number of fliers posted around campus. Nungesser said he agreed to a police interview at the Sex Crimes Unit in New York City in August, and that shortly after this the district attorney's office told him they would not be pursuing the case.

Sulkowicz's performance art piece

Sulkowicz created Mattress Performance (Carry That Weight) in the summer of 2014 for her senior thesis while at Yale University Summer School of Art and Music. Her first effort was a video of herself dismantling a bed, accompanied by the audio of her filing the police report, which she had recorded on her cellphone. The mattress later became the sole focus of the piece. Sulkowicz told New York magazine:

I thought about how ... the mattress represents a private place where a lot of your intimate life happens; and how I have brought my life out in front for the public to see; and the act of bringing something private and intimate out into the public mirrors the way my life has been. Also the mattress as a burden, because of what has happened there, that has turned my own relationship with my bed into something fraught.

The 50-pound (23 kg), dark-blue, extra-long twin mattress used in the performance art piece is of the kind Columbia places in its dorms, similar to the one on which she alleges she was raped. Sulkowicz spent the summer of 2014 creating the rules of engagement: Written on the walls of her studio in the university's Watson Hall, these state that she must carry the mattress whenever she is on university property; that it must remain on campus even when Sulkowicz is not there; and that she is not allowed to ask for help in carrying it, but if help is offered she may accept it. In September that year she began carrying it on campus, which she says is a physically painful experience.

Nungesser's lawsuit

On April 23, 2015, Nungesser filed a sexual discrimination lawsuit against Columbia, its board of trustees, its president Lee Bollinger, and Sulkowicz's supervising art professor Jon Kessler. The lawsuit alleges failure to protect him against harassment in the wake of the incident. Specified grievances include: that a school-owned website had presented as fact that he sexually assaulted Sulkowicz; that the school allowed Sulkowicz to carry a mattress into classes, the library, and on campus-provided transportation as part of her senior thesis; and that Kessler approved the Mattress Project for course credit allegedly in violation of Title IX, a federal law mandating that federally funded educational institutions not discriminate based on gender.

The suit argues that Nungesser had provided evidence that the encounter was consensual with lack of signs of physical or emotional trauma and text based messages where Sulkowicz responded to Nungesser positively after the encounter.

Nungesser argued that despite being found not responsible Sulkowicz was able to "actively earn course credit from Columbia for this outrageous display of harassment and defamation [...] to fulfill her graduation requirement of a senior thesis, even despite clear notice by Paul and his parents to President Bollinger and other Columbia persons of authority, that Paul’s legal rights are being violated." It accuses Bollinger of having "displayed a contemptible moral cowardice in bowing down to the witch hunt against an innocent student instead of standing up for the truth and taking appropriate steps to protect Paul from gender based harassment." Nungesser says he was "targeted because he is a male, and attacked for his (consensual) sexual activity."

He stated, "Day-to-day life is unbearably stressful, as Emma and her mattress parade around campus each and every day". As a result of publicity that resulted in media reports in 35 countries, he says he "has been subjected to severe, pervasive ... and threatening behavior by other Columbia students". He says he desires to stay in the US, where he has been dating a girlfriend for over a year and he is seeking consulting work in New York but job prospects have been "severely jeopardised" by the school’s support of Sulkowicz.

The case was assigned to US District Court Judge Gregory Woods, an appointee of President Barack Obama recommended by Senator Charles Schumer. Woods dismissed the case in March 2016, but allowed Nungesser another attempt.

Facebook messages

Nungesser presented Facebook messages sent August 29, 2012 two days after the alleged rape where Sulkowicz responded to a party invitation with "lol yussss. Also I feel like we need to have some real time where we can talk about life and thingz [...] because we still haven’t really had a paul-emma chill sesh since summmmerrrr". Sulkowicz confirmed the authenticity and time stamps of the messages, but included her annotations. Sulkowicz believed that Paul sent the message to avoid suspicion and said her response was so that Nungesser would not be scared to discuss the incident.

Two weeks later on September 9 Sulkowicz sent Nungesser a message "Wanna hang out a little bit before meeting tonight? Maybe you have your phone back, I'll text yaaa". Sulkowicz said that she still wanted to talk.

On October 4, a day after Nungesser wished Sulkowicz a happy birthday, she responded with "I love you Paul. Where are you?!?!?!?!". Sulkowicz said she sent the message to "[have] this 'talk' with him".

Commentary on lawsuit

Megan McArdle commented on the Title IX complaint in Bloomberg View saying, "I don't find (Nungesser's) litany of complaints particularly compelling". She questioned the school's decision to give Sulkowicz course credit but said that Nungesser should not have the power to silence Sulkowicz. She concluded "perhaps winning the suit is not the point. I wonder if many of the men in question aren't simply rebelling against the system, determined to get their side of the story on the record somewhere - for much the same reason that Sulkowicz said she filed a complaint against Nungesser. He can't silence her, and he shouldn't have that power. But he can force the media to pay a little attention to his side of the story, something that didn't happen during the many long months of Sulkowicz's campaign to name and shame him." McArdle also said that Sulkowitz's account has "some problems" including her messages to Nungesser, and possibly "fudging" details to reporters.

KC Johnson, history professor at Brooklyn College, was quoted in Reason discussing the confidentiality/privacy instructions Nungesser reported receiving following the university hearings which specifically stated: "breaches of confidentiality/privacy [against] the complainant, respondent, witnesses, or the investigators, may result in additional disciplinary action." Johnson presumes Sulkowicz received the same instruction, otherwise the university would be in violation of Title IX. Johnson said "Sulkowicz obviously has ignored that requirement, and responded to the not-culpable finding by going on a media spree...No evidence exists that Columbia disciplined Sulkowicz for the breach of confidentiality. Instead, Columbia removed the promise of confidentiality in 2014, after Sulkowicz had begun her publicity effort."

Robby Soave wrote in Reason that it is ironic that Nungesser's lawsuit rests on Title IX. He further remarked that rape victims who believe they did not receive justice from the university often turn to Title IX, saying, "In some sense, Nungesser is flipping the script by alleging that Sulkowicz’s rape accusations and subsequent activism are the kind of thing that [the Office for Civil Rights] believes Title IX requires universities to prevent."

The Foundation for Individual Rights in Education's Samantha Harris commented, "The current interpretation of Title IX [...] arguably invites the type of claims that Nungesser is making. But from FIRE’s perspective, the case is notable because it illustrates just what a broken system looks like. [...] Two students at Columbia University, on both sides of a sexual assault allegation, have completely lost faith in Columbia’s ability to deliver a trustworthy, reliable verdict. [...] And as a result of this loss of confidence on both sides, a great number of very personal details about two students’ sex lives have become national news. And yet with every new piece of federal guidance, universities like Columbia only become more and more entangled in handling claims of serious felony misconduct. Time and again, universities demonstrate—in ways that harm both victims and the accused—that they are simply not equipped to address such complicated and serious cases. Doubling down on this broken system is not the answer, and until something changes, we are likely to see more cases like this one.“

Sulkowicz and Columbia University response

Sulkowicz responded to the lawsuit by saying it is "ridiculous that Paul would sue not only the school but one of my past professors for allowing me to make an art piece" and saying that Nungesser has made "continued public attempts to smear [her] reputation".

The school, via one of its spokespeople, had no official comment on the lawsuit, and Kessler also declined to comment, although Columbia University president Bollinger offered a general statement: "The law and principles of academic freedom allow students to express themselves on issues of public debate; at the same time, our legal and ethical responsibility is to be fair and impartial in protecting the rights and accommodating the concerns of all students in these matters."

Reception

Public opinion regarding the case and lawsuit have been mixed. Cathy Young criticized Columbia University for violating the defendant's rights to due process, commenting there was "certainly enough evidence to grant Nungesser the benefit of reasonable doubt not only in legal disciplinary proceedings, but in the court of public opinion". The Foundation for Individual Rights in Education's Samantha Harris pointed to the case as evidence that colleges were poorly equipped to handle sexual assault cases, stating "from FIRE’s perspective, the case is notable because it illustrates just what a broken system looks like."

KC Johnson, history professor at Brooklyn College argued that Sulkowicz's performance violated Columbia University's policy instructing participants in campus hearings to “make all reasonable efforts to maintain the confidentiality/privacy of the involved parties".

After Sulkowicz accused Cathy Young and Paul Nungesser of invading her privacy while reporting on the accusation, National Review columnist Ian Tuttle wrote Sulkowicz wanted "to make claims about another person that cannot be challenged, checked, questioned, or doubted."

Columnist and political analyst Mona Charen was critical of Sulkowicz, and said that "it seem[ed] highly likely that Sulkowicz is shading the truth".

Erin Gloria Ryan of Jezebel supports Sulkowicz and criticized Young for being "reliably rape-skeptical" and accused her of invoking a "perfect victim" narrative that relied on inaccurate stereotypes about how sexual assault victims should behave. Columnist Cassandra Guerrier called Sulkowicz a "hero" and "brave" because "no one should ever have to be afraid of speaking up." Amanda Marcotte, writing for the left-leaning news site Talking Points Memo, characterized the suit as a "nuisance lawsuit" and criticized Nungesser's decision to pursue a claim under Title IX rather than filing a libel suit.