Columbia University rape accusation controversy

In April 2013, Emma Sulkowicz, an American fourth-year visual arts major at Columbia University in New York City, filed a complaint with Columbia University requesting expulsion of fellow fourth-year student and German national, Paul Nungesser, alleging he had raped her in her dorm room on August 27, 2012. Nungesser was ultimately found not responsible by a university inquiry. In May 2014, Sulkowicz filed charges with the New York Police Department, but declined to pursue an investigation after Sulkowicz discovered the case could extend past her graduation, when she would probably want to "erase all of [her] memories of Columbia". Sulkowicz further alleged that NYPD officers "badly mistreated" her and "were dismissive of what she had to say". The district attorney's office also interviewed Sulkowicz and Nungesser, but did not pursue charges, citing lack of reasonable suspicion.

Afterwards, Sulkowicz focused her senior thesis on a work of performance art entitled Mattress Performance (Carry That Weight) which involved Sulkowicz carrying a mattress wherever she went on campus in protest of what she describes as "Columbia University's mishandling of her sexual assault complaint". Nungesser called Sulkowicz's allegations "untrue and unfounded" and described her mattress piece as an act of bullying intended to force him to leave Columbia.

In April 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, alleging their negligence in preventing his harassment. In the complaint Nungesser states Sulkowicz allegation of rape is false and made in response to unreciprocated desire for a serious relationship therefore allowing the performance is harassment and a violation of his rights. District Court Judge Gregory H. Woods dismissed the lawsuit but allowed Nungesser another attempt.

Emma Sulkowicz

Sulkowicz in December 2014

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. She 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, and 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. Nungesser later described these messages as "amiable" and released transcripts of these messages to The Daily Beast columnist, Cathy Young, who has a history of reporting critically on sexual assault activism. 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.

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 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. The German student further appealed on grounds 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 withdrew from the process entirely, citing a new job and difficulty taking time off work to attend the university hearings.

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 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. Cathy Young stated that his case was fabricated.

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 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, “The panel were asking sensible questions; they were equally asked of Paul, and had been asked of Paul through the entire process."

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 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 Senator Kirsten Gillibrand 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 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 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 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.

Sulkowicz's performance art piece

Main article: Mattress Performance (Carry That Weight)

Sulkowicz (center right) carrying the mattress at graduation

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 suit alleged that the performance was bullying and constituted gender-based harassment, and argued that Columbia's offering course credit for the work violated his rights under Title IX. The suit sought damages for the harm Nungesser said he experienced to his reputation as a result of the performance.

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."

The case was assigned to US District Court Judge Gregory Woods, Woods dismissed the case in March 2016, ruling that Nungesser had failed to state a claim under Title IX, but allowed Nungesser to refile an amended complaint. Nungesser filed an amended complaint on April 25, 2016.

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 university president 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."

Reception

Public opinion regarding the case has been mixed. Families Advocating for Campus Equality said that Sulkowicz "failed to establish any wrongdoing by the student she accused", and columnist and political analyst Mona Charen said that "it seems highly likely that Sulkowicz is shading the truth". Megan McArdle of Bloomberg View stated "Sulkowicz's account definitely has some problems" comments sent after the encounter such as "'wanna see yoyououoyou' and 'I love you Paul. Where are you?!?!?!?!'" are "not what you would expect from an assault victim to an assailant". When inquired about the allegation by Cathy Young, Sulkowicz said:

I have already been violated by both Paul and Columbia University once. It is extremely upsetting that Paul would violate me again — this time, with the help of a reporter, Cathy Young. I just wanted to fix the problem of sexual assault on campus — I never wanted this to be an excuse for people to dig through my private Facebook messages and frame them in a way as to cast doubt on my character. It’s unfair and disgusting that Paul and Cathy would treat personal life as a mine that they can dig through and harvest for publicity and Paul’s public image.

Ian Tuttle of National Review criticized this response stating "[has] it never occurred to Sulkowicz or her defenders that, as rape is a serious matter, accusing someone of rape is also serious? And that to go public with life-altering accusations is by definition to submit one’s own private life to scrutiny? [...] What Sulkowicz wants is to make claims about another person that cannot be challenged, checked, questioned, or doubted." Cathy Young also 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".

Erin Gloria Ryan of Jezebel has shown support for Sulkowicz and criticized Young for being "reliably rape-skeptical" and for "joking about rape". Ryan said that Young admitted victims "don't always respond to what happened to them with revulsion". Columnist Cassandra Guerrier considered Sulkowicz a "hero" and "brave" because "no one should ever have to be afraid of speaking up."