Mattress Performance (Carry That Weight)

Mattress Performance (Carry That Weight)
Artist	Emma Sulkowicz
Year	2014–2015
Type	Performance art, endurance art
Subject	Sulkowicz carrying 50 lb (23 kg) twin mattress on Columbia University campus
Location	Morningside Heights, Manhattan, New York City

Mattress Performance (Carry That Weight) is a work of endurance performance art by Emma Sulkowicz, an American fourth-year visual arts major at Columbia University in New York City who has alleged that she was raped in her dorm room by fellow fourth-year student and German national, Paul Nungesser.

Initiated in September 2014 for her senior thesis, the work of performance art involves Sulkowicz carrying a mattress wherever she goes on campus, to protest what she describes as Columbia University's mishandling of her sexual assault complaint. Sulkowicz says she will continue carrying the mattress as long as she is attending school with the student she alleges sexually assaulted her.

Mattress Performance (Carry That Weight) has received recognition and praise from art critics as well as feminist organizations. Other commentators have criticized the work as unfair to Nungesser. Sulkowicz's performance art prompted Senator Kirsten Gillibrand to invite her to the 2015 State of the Union Address to bring attention to the issue of campus rape. The performance and its ensuing controversy have sparked activism across the United States and abroad.

The accused student, Paul Nungesser was found not responsible by a university inquiry and the district attorney's office declined to pursue an investigation. Nungesser has called Sulkowicz's allegations "untrue and unfounded" and has described her mattress piece as an act of bullying intended to force him to leave Columbia. He has filed a sexual discrimination lawsuit against Columbia University, its board of trustees, its president Lee Bollinger, and Sulkowicz's supervising art professor Jon Kessler alleging their negligence in preventing his harassment.

Emma Sulkowicz

Sulkowicz in December 2014

Emma Sulkowicz (born 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 and fourth year student at Columbia University studying architecture. Nungesser is the son of Karin Nungeßer and Andreas Probosch. Karin is a journalist for the National Council of German Women's Organizations and feminist blogger for the blog weibblick. Andreas is a schoolteacher at Hunsrück Primary Schol in Kreuzberg. Nungesser attended high school at the Waterford Kamhlaba United World College of Southern Africa located in Mbabane, Swaziland, where he was active in both community service and drama productions. In 2011, Nungesser was accepted to Columbia University on a John Jay scholarship which provides full tuition and grants for independent summer research.

Background

In 2011, during the Columbia Outdoor Orientation Program (COÖP), a freshman pre-orientation stressing outdoor activities, Paul Nungesser and Emma Sulkowicz met and became friends. Nungesser and Sulkowicz both separately joined a co-educational 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 in August 2012, in her dorm room, she was raped by fellow student Paul Nungesser.

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

He and Sulkowicz both corroborate they had had consensual sex twice before, earlier in the year, but not anal sex. According to Nungesser, the encounter in August was also entirely consensual. He denies 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, including Sulkowicz writing (two days after the incident), "I feel like we need to have some real time where we can talk about life and thingz", but they saw each other progressively less. Nungesser later released transcripts of these messages to journalist Cathy Young who has a history of reporting on rape. Sulkowicz expressed concern they would be used to present her as unreliable, and stated she had sent the messages 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. Doing so would be a violation of the Title IX guidelines for colleges and universities' response to sexual assault.

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

In early 2013 Sulkowicz discussed the incident with "Natalie", Nungesser's former girlfriend. Natalie alleged that there had been nonconsensual 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 18 April 2013 and Natalie filed one a few days later.

Allegations from others

Three complaints have been alleged against Nungesser: Sulkowicz accused Nungesser of rape; a second woman accused him of emotional abuse and nonconsensual sex during a months-long relationship, and a third student accused Nungesser of non-consensually kissing her and touching her at a party.

Sulkowicz's complaint was dismissed for lack of evidence, and her request for an appeal was denied.

Nungesser's second accuser's investigation was discontinued after the complaining student 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 and final complaint in question was initially decided against him, with an assigned punishment of disciplinary probation, but Nungesser successfully appealed, citing procedural errors and problems with the admission of hearsay. Nungesser further appealed that his accuser had failed to demonstrate guilt by a "preponderance of the evidence" as required in campus hearings. When the case was heard again, the accuser decided to withdraw from the process entirely, citing a new job and difficulty taking time off work to attend the university hearings as her reason for withdrawing.

In each of these cases, Nungesser was found "not responsible". The standard of proof at these university hearings was "preponderance of evidence", rather than the stricter standard of "clear and convincing evidence".

Nungesser 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 university after they heard about one another's experiences.

Outcome of Sulkowicz's hearing

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 complained that a university investigator took inaccurate notes of interviews with her, and that she had to offer unnecessarily graphic details during the hearing. A graduate student who accompanied Nungesser to the hearing contested this last point.

Nungesser complained that he had not been allowed to introduce Facebook messages as evidence. Journalist and writer Naomi Schaefer Riley wrote in the New York Post that two days after the alleged rape, Nungesser had invited Sulkowicz via Facebook messaging to come to a party saying, "Small shindig in our room tonight-bring cool freshman." And she responded, "lol yusss, 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". A couple weeks later Sulkowicz messaged saying "I want to see yoyououoyou". Riley noted that there are six pages' worth of back-and-forth Facebook messages between the two which were released by Nungesser and subsequently published by Cathy Young. Sulkowicz has confirmed the authenticity of the messages, but has said that snippets have been published out of context. Sulkowicz says she sent the messages because she was upset and wanted to talk to Nungesser about the incident.

Press conference, federal complaint

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

On 24 April, 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 also 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 3 May 2014 an interview with Sulkowicz appeared on the front page of The New York Times. For several days from 7 May onwards, the accused student (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 14 May 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 says that 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.

The performance art piece

External images

Rules of engagement, Watson Hall
Sulkowicz with mattress on campus
October 2014

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.

Sulkowicz was advised about the piece by artist Jon Kessler, a professor at Columbia. Kessler has said: "[W]e got involved in phone conversations about the nature of endurance art, talking about pieces by Tehching Hsieh and Marina and Ulay and Chris Burden."

"But what struck me from the get-go ... is that, more than any of those people, Emma's work comes from something which is so much more personal and so much deeper and so much less of a programmatic idea about what to do, but really about working something out cathartically and also making an enormous statement for change. And that's what makes it so powerful."

Kessler was later named in Nungesser's lawsuit with Nungesser alleging Kessler was complicit in harassment against him because Columbia (for which Kessler works) had been found "not responsible" for the charges brought against him.

Sulkowicz has said she plans to continue carrying the mattress until Nungesser is expelled from or otherwise leaves Columbia, and that she will take the mattress to her graduation ceremony if necessary. As part of his lawsuit against Columbia University, Nungesser is attempting to block Sulkowicz from bringing the mattress to their graduation ceremony. Sulkowicz asked: “If artists are not allowed to make art that reflect on our experiences, then how are we to heal?” but she also said, "If for some reason someone prevents me from carrying the mattress at graduation that will be how this historical moment ends".

Reception

Praise

New York Times art critic Roberta Smith described the piece as "strict and lean, yet inclusive and open ended, symbolically laden yet drastically physical", writing that comparisons to the Stations of the Cross and Hester Prynne's scarlet letter are apparent. Nato Thompson, chief curator of Creative Time, said that he "[couldn't] think of another instance where a work of art has triggered a movement in this way." Art critic Jerry Saltz called it "clear, to the point, insistent, adamant ... pure radical vulnerability", and included it in his list of the best 19 art shows of 2014.

Artist Marina Abramović praised it, and Artnet cited it as "almost certainly ... one of the most important artworks of the year", comparing it to Ana Mendieta's Untitled (Rape Scene) (1973) and Suzanne Lacy and Leslie Liebowitz's Three Weeks in May (1977). Hillary Clinton also commented on it saying: "That image should haunt all of us".

Furthering the activist cause

According to Nato Thompson, the work was "adopted ... swiftly and effectively". On 29 October 2014 dozens of Columbia students carried 28 mattresses around the school's Morningside Heights campus, one for each student who joined the federal Title IX complaint, then left them outside the home of Lee Bollinger, president of the university, attracting a $471 fine for the clean-up. A month later a group called "Carry That Weight" organized similar protests in 130 campuses in the US, and several around the world, including the Central European University in Budapest, calling for a "National Day of Action to Carry That Weight".

Sulkowicz received the National Organization for Women's Susan B. Anthony Award and the Feminist Majority Foundation's Ms. Wonder Award for the piece. In January 2015 Senator Kirsten Gillibrand invited her to attend the 2015 State of the Union Address. Families Advocating for Campus Equality said the invitation was "undeserved and violates the principles of confidentiality and gender equality of Title IX", and that Sulkowicz had "failed to establish any wrongdoing by the student she accused". Gillibrand, who co-sponsored the Campus Safety and Accountability Act, told reporters that the invitation sent "a message to ... [her] colleagues and to the White House" that the issue of sexual assault on campus was important.

Criticism

The student whom Sulkowicz accused, Paul Nungesser, said in a December 2014 interview with The New York Times that the mattress performance is not an act of artistic expression, but instead one orchestrated to bully him and force him to leave Columbia. He complained that on the National Day of Action, protesters followed him around, carrying mattresses to one of his classes and taking his picture. He also said that he was not permitted to use written communications between himself and the alleged victim as evidence, and expressed disbelief that anyone could believe he was guilty even after his accusers failed to meet the low burden of proof in the university hearing process. Nungesser also stated that since Sulkowicz's protest serves as her senior thesis, it is being supervised and implicitly endorsed by a Columbia faculty member. His lawyer added that Senator Kirsten Gillibrand failed to adequately investigate Sulkowicz's account before appearing with her to publicize legislation to curb campus sexual assault and that she "[took] a fictional event and [built] an entire platform around it".

Asked by a German news magazine about her feelings on the treatment of her son at Columbia University, Paul's mother Karin answered: "This is a feeling of lawlessness." His father Andreas said that he sometimes fears his son will leave Columbia as a "cynic" and a "suspicious man".

The New York Post's Naomi Schaefer Riley criticized Sulkowicz's work as "shaming without proof" and accused her and her supporters of "saving themselves from having to answer any questions and destroying men's lives with lies and innuendo." Glenn Reynolds, Law Professor at the University of Tennessee, wrote at his political blog Instapundit: "It would have been nice if Senator Kirsten Gillibrand hadn't joined the lynch mob, embracing Sulkowicz and calling Nungesser a 'rapist' even after he was cleared by two different proceedings (one of which required only a preponderance of the evidence to convict)".

Lawsuit

External document

PAUL NUNGESSER V. COLUMBIA UNIVERSITY, TRUSTEES OF COLUMBIA UNIVERSITY, LEE C. BOLLINGER, and JON KESSLER (Complaint), Nessenoff & Miltenberg LLP, New York City

On April 23, 2015, Paul Nungesser filed a sexual discrimination lawsuit against Columbia University, its board of trustees, its president Lee Bollinger, and Sulkowicz's supervising art professor Jon Kessler. The lawsuit alleges failure to protect Nungesser against harassment in the wake of the incident. Specified grievances include: that a Columbia-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 campus-provided transportation as part of her senior thesis; and that Kessler approved the "Mattress Project" for her course credit allegedly in violation of Title IX, a federal law mandating that federally funded educational institutions not discriminate based on sex.

Nungesser 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 United States, 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 Judge Gregory Woods, an appointee of President Barack Obama recommended by Senator Charles Schumer.

Commentary on lawsuit

Commenting on the sexual discrimination lawsuit, feminist Amanda Marcotte wrote in Talking Points Memo, "This lawsuit is taking the arguments of anti-rape activists and directly inverting them, painting alleged abusers as victims and alleged victims as abusers." She wrote that Title IX was intended to address issues such as sexual harassment and rape, "but Nungesser’s lawsuit inverts that claim, arguing that the real harassment is speaking out about rape and harassment." The Foundation for Individual Rights in Education responded, "This is not a 'nuisance lawsuit.' The current interpretation of Title IX arguably invites the type of claims that Nungesser is making. According to FIRE, the case is notable because it "illustrates just what a broken system looks like. (...) 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."

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 Columbia'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."

KC Johnson, history professor at Brooklyn College, was interviewed by Reason magazine discussing the confidentiality/privacy instructions that are a part of every Columbia University sexual assault hearing. During this interview, Johnson was quoted as saying that "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 magazine that it is ironic that Nungesser's lawsuit rests on Title IX, which is often used to pressure universities to crack down on sexual harassment. He further remarks 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."

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". Asked why Sulkowicz wasn't personally named as a defendant in the suit Nungesser's attorney, Andrew Miltenberg, said: "This case is not about Emma Sulkowicz. It is about Columbia University as an institution, which was not only silent, but actively and knowingly supported attacks on Paul Nungesser, after having determined his innocence, legitimizing a fiction. Emma Sulkowicz is merely a footnote to this story."

Robert Hornsby, a Columbia University spokesperson, said the university had no comment on the lawsuit, and Kessler also declined to comment, although Columbia University president Lee Bollinger offered a general statement, saying, "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."