Tag Archives: mattress case

Did ‘Mattress Girl’ Tell the Truth?  Not Very Likely

At least for now, Columbia’s mattress saga is over. Emma Sulkowicz, the student who spent her final year on campus toting a mattress to protest the school’s failure to punish her alleged rapist, graduated at the end of May; so did Paul Nungesser, the accused man who says he’s the real victim.

There was more drama at graduation: Sulkowicz toted her mattress onstage in defiance of school regulations and later accused Columbia president Lee Bollinger of snubbing her. In related news, posters branding Sulkowicz a liar cropped up near the campus; Nungesser was reported cleared on the last sexual assault complaint against him, this one from a male student; and, the next day, one of his two anonymous female accusers told her story on the feminist blog Jezebel.

An attempt at summing up this messy saga and its lessons comes from Emily Bazelon via Sunday’s New York Times Magazine. Bazelon admits that l’affaire Sulkowicz drama highlights major problems with the current system of Title IX-based campus “justice”—including “utter lack of transparency,” which is not a bug but a feature of the system: federal law stringently protects the privacy of students involved in disciplinary cases. As a result, in an alleged rape case that has attracted international attention and scrutiny, we are mostly left with he said/she said accounts not only of what happened between Nungesser and his accusers, but of how the complaints were handled by the university. The records exist, including transcripts and video recordings of the hearings; but they are off-limits and likely to remain so.

Dispensing with Due Process

Bazelon believes this fiasco is a result of the current system’s growing pains—of “a transitional period in the evolution of how universities handle sexual assault.” But it’s hard to see what reforms would fix the problem. Even if school staff are better trained to investigate sexual misconduct reports—assuming that “better training” actually means more effective fact-finding, not more faithful adherence to believe-the-survivor dogma—this would not address the underlying issue: that activists like Sulkowicz want to dispense with any semblance of due process and refuse to respect any result other than culpability and punishment.

(Incidentally, while Bazelon correctly notes that “rape is extremely difficult to prosecute both effectively and fairly,” the kind of violent attack that Sulkowicz alleges—an excruciatingly painful anal rape during which she was hit in the face, choked within an inch of her life, and pinned by the arms—would be quite easy to prove, at least if promptly reported to the police. The physical evidence would have been overwhelming.)

One lesson of this case Bazelon doesn’t mention is that if universities are going to have rules for the disposition of Title IX cases, they need, at least, to enforce those rules in a fair and meaningful way. As Nungesser’s lawsuit against Columbia points out, all the parties in sexual misconduct cases are urged to do what they can protect the confidentiality of the process and the privacy of all those involved. Sulkowicz has repeatedly violated that rule with impunity; the male accuser, known as “Adam,” talked to Jezebel about his complaint while it was still under investigation, apparently with no consequences.

On Fulsome Display

Columbia’s craven acquiescence to Sulkowicz’s activism was on fulsome display in the graduation dust-up. A university email sent the previous day had reminded students not to bring large objects into the ceremonial area. When Sulkowicz arrived toting her mattress, she was apparently asked to stow it away for the ceremony; she refused, and she and her helpers were finally allowed onstage anyway. The university’s official statement, emailed to me by director of communications Victoria Benitez, noted, “We were not going to physically block entry to graduates who are ultimately responsible for their own choices.” In other words, compliance with the rules is a personal choice.

Another lesson is that the media need to exercise due diligence and skepticism when it comes to “survivor” narratives: not to treat accusers as presumptive liars, of course, but to ask questions and do the fact-checking. (In other words, “trust but verify.”) That is something journalists egregiously failed to do for months, when Sulkowicz’s narrative went unchallenged amidst massive publicity. The mainstream coverage today is much more balanced; Bazelon clearly presents this as a story with two sides and mentions some of the exculpatory evidence, including Sulkowicz’s chatty Facebook messages to Nungesser after the alleged rape.

Yet even now, failure to verify remains a problem. No one, as far as I can tell, has followed up on Sulkowicz’s claim (made in the annotations to her Facebook messages for Jezebel last February but never mentioned before or since) that the day after she was allegedly raped by Nungesser, she talked about it to a female friend “who explain[ed] it was rape.” If such a corroborating witness exists, why did she not testify at the hearing or come forward to support Sulkowicz? Can Sulkowicz give this friend’s name to journalists, at least on the condition that she won’t be publicly identified?

To state the obvious, the truth in this story is ultimately unknowable. But here’s what we do know.

Kept up A Friendly Act

Sulkowicz’s account of her rape strains credulity to the extreme. Sulkowicz accuses Nungesser of an extremely brutal assault that should have left her visibly injured (with bruises not only on her face but on her neck and arms, unlikely to be covered by clothing in August and early September in New York) and in need of medical attention. Yet no one saw anything amiss after this attack, and both Nungesser and Sulkowicz went on to chat and banter on Facebook as if nothing happened. Sulkowicz’s claim that she kept up a friendly act hoping to confront him about the rape seems extremely dubious, given the near-psychotic violence she alleges and the lack of any sign of unease or tension in their online conversations. (When I reread these archives recently, I checked the timestamps to see if there were any awkward pauses; there weren’t, not even when Nungesser asks Sulkowicz to bring more girls to his party and she replies, “I’ll be dere w da females soon.”)

Is Sulkowicz a “false accuser”? We don’t know that. It’s possible that something ambiguous happened between her and Nungesser that night—something that she later came to see as coercive and embellished with violent details. But I would say the odds of her account being factually true are very low.

Sulkowicz has demonstrable credibility problems.A few examples:

  • As Nungesser’s lawsuit notes, at one point in spring 2014 Sulkowicz wrote that she lived in daily terror of encountering her rapist on campus—while another statement she made around the same time shows that she knew he was spending a semester in Europe.Prior to her claim that she spoke to a friend the morning after the alleged rape, Sulkowicz had sometimes asserted that she didn’t tell anyone for several months, sometimes that she told a few friends.Last fall, Sulkowicz told the Times’ Ariel Kaminer that after filing a police report, she had elected not to pursue criminal charges because the process would be “lengthy” and “too draining.” Now, she tells Bazelon that she stopped talking to investigators because “the police were visiting her apartment unexpectedly.”
  • The multiple charges in this instance do not make for a stronger case because they are demonstrably linked to each other; what’s more, there is evidence backing Nungesser’s claim that he was targeted for a vendetta based on the belief that he had raped Sulkowicz.
  • One of the other two female accusers, “Natalie”—Nungesser’s freshman-year girlfriend—filed a complaint after talking to Sulkowicz and (in Sulkowicz’s words) delving into their “shared trauma.” Her complaint was dismissed for lack of evidence after she stopped cooperating with investigators. Nungesser’s lawsuit says she claimed she felt obligated to have sex with him; Natalie herself told Bwog, the Columbia campus magazine, that he would often forcefully pin her arms back during sex and that she often cried when they were in bed. (She struggled with major depression during their relationship.)

Rape or Drunken Pass?

  • “Josie,” the accuser who authored the piece for Jezebel, admits that she filed her complaint with the encouragement of a “friend” who told her that Nungesser had been accused of raping another woman. As I have previously reported, that friend—to whom I have referred by the pseudonym “Leila”—was an officer in the Alpha Delta Phi coed fraternity to which Nungesser, Sulkowicz, and Josie all belonged. At the time, Leila was trying to get Nungesser ejected from the ADP residence because of Sulkowicz’s charges. (Josie also lived at the house; Sulkowicz did not.)Josie’s charge is the only one on which Nungesser was initially found culpable; that finding was later reversed on appeal, and a second hearing exonerated Nungesser after Josie declined to participate.Josie has given somewhat contradictory accounts of her decision to withdraw from the process. Among other things, she has repeatedly stressed that she had graduated from Columbia by then, without mentioning that the first hearing also took place months after her graduation in May 2013. (According to the timeline compiled by Nungesser’s parents, the original hearing was held September 26; the appeal was granted on October 28, and the second hearing was on December 13.)Even if Josie’s story is true, her complaint hardly corroborates Sulkowicz’s accusation. Sulkowicz is alleging a brutal rape; Josie is alleging a boorish drunken pass at a booze-soaked frat party. She says that Nungesser followed her upstairs after offering to help restock the bar, then tried to kiss her and pulled her toward him despite her protestations, until she pushed him off and left. Such behavior may meet the definition of sexual assault on the modern campus, but it is hardly the mark of a violent sexual predator. Josie herself says she did not think of it as “sexual assault” until she heard about the alleged attack on Sulkowicz.
  • The last and fourth charge from “Adam” has been all but definitively exposed as a fabrication, as I wrote on Reason.com last month after reviewing a leaked internal report by Columbia Title IX investigators. The report describes Adam as a highly “unreliable” complainant, partly because social media records contradicted his version of his interactions with Nungesser and backed Nungesser’s. Adam also made bizarrely paranoid claims that Nungesser “retaliated” for his complaint—before the complaint was filed—by sitting too close to him and his friends in class and complimenting a point he had made in a class discussion.The document also reveals that Adam first made his allegations to Leila while she was collecting accusations of sexual misconduct against Nungesser in the wake of Sulkowicz’s charge. Without explicitly confirming the existence of a vendetta, it notes that “at the time of the Complainant’s initial disclosure, at least several of his close friends … were [seeking] to evict the Respondent from the fraternity house.” Adam was a close friend of Natalie’s; Nungesser’s lawsuit also alleges he is a close friend of Sulkowicz’s.

Uncritical Reporters

While this is purely speculative, it is also interesting to note that the accusations against Nungesser first emerged in the immediate aftermath of the Steubenville, Ohio rape trial in February-March 2013, when the moral panic about “rape culture” reached fever pitch in the media and “sexual awareness” events proliferated on college campuses. Is it possible that this atmosphere of hypercharged rhetoric about the ubiquity of sexual violence and its tacit toleration by American society encouraged at least some of the complainants to reinterpret their own experiences as assaultive?

With Nungesser’s lawsuit still pending, the story is certain to be back in the news. Perhaps, by the time it reaches its next round in the news cycle, the journalists who cover this case will learn some of its lessons and ask the hard questions.

In the meantime, there is certainly enough evidence to grant Nungesser the benefit of reasonable doubt not only in legal disciplinary proceedings, but in the court of public opinion. That is something he has been denied by Sulkowicz’s campaign and its mostly uncritical media reception.

Male in ‘Mattress Case’ Sues Columbia

Male in ‘Mattress Case’ Sues Columbia

KC Johnson

Paul Nungesser—the Columbia student targeted by Emma Sulkowicz’s media campaign and described by Kristin Gillibrand as a “rapist” in a statement released by the New York senator’s office—has filed a Title IX lawsuit against Columbia University. The case was assigned to Judge Gregory Woods, an Obama appointee recommended by Charles Schumer. (This is the same district that includes the due process-unfriendly Ronnie Abrams, so the assignment could have been worse.) You can read the filing here.

Cathy Young has the best journalistic summary of Nungesser’s experience. Even though he was found not culpable in Columbia’s accuser-friendly adjudication process; and even though the NYPD declined to pursue Sulkowicz’s claims; and even though Nungesser’s advisor cast doubt on Sulkowicz’s portrayal of the Columbia disciplinary process; and even though flirtatious e-mails from Sulkowicz to Nungesser seemed irreconcilable with Sulkowicz’s claim that Nungesser violently attacked her—media portrayals offered up Sulkowicz as a “survivor.” The editor of the op-ed page at the Columbia Spectator subsequently admitted that “we, the members of the campus media, failed specifically with [Emma] Sulkowicz’s story by not being thorough and impartial. Instead, campus media’s goal to promote discussion about sexual assault and to support survivors became conflated with a fear of rigorous reporting. Personally, I felt that if I covered the existence of a different perspective—say, that due process should be respected—not only would I have been excoriated, but many would have said that I was harming survivors and the fight against sexual assault.”

A Non-Credible Accuser?

The complaint goes into considerable detail regarding the Nungesser-Sulkowicz relationship; using private Facebook messages, the complaint notes that the two frequently discussed intimate matters (including Sulkowicz’s claim that she had been raped in high school and her discussion of students on campus with whom she had intercourse). The messages contradict Sulkowicz’s subsequent assertions that she and Nungesser had never discussed certain types of intercourse before sleeping together.

The Facebook messages in the complaint—many of which Cathy Young previously had uncovered—reveal a relationship in which desire became increasingly imbalanced. Nungesser told Sulkowicz he had met someone else over the summer (“a summer fling”); messages from Sulkowicz over the summer responded, “I LOVE YOU – SO MUCH” – “I MISS YOU MORE THAN ANYTHING.”

Their friendship apparently resumed in fall 2012, and they slept together one time in September 2012. Sulkowcz’s messages to Nungesser afterwards contained no indication of any assault. Rather, she told him “I wanna see yoyououoyou” and “I love you Paul. Where are you?!?!?!?!”But Nungesser didn’t seem interested, and (as Young had noted in her article) the two didn’t meet. According to the complaint, “she continued pursuing him, reiterating that she loved him. However, when Paul did not reciprocate these intense feelings, and instead showed interest in dating other women, Emma became viciously angry.” Sulkowicz then filed a complaint of sexual assault with Columbia.

Despite Columbia’s low evidentiary standard (preponderance of evidence) and accuser-friendly procedures, Nungesser wasn’t found culpable—even though he wasn’t able to present clearly exculpatory evidence (the Facebook messages) and possibly exculpatory evidence (that Sulkowicz had previously claimed that another Columbia student had raped her). Sulkowicz’s lack of credibility was, it seems, more than enough for the Columbia panel.

The university instructed Nungesser that it would “make all reasonable efforts to maintain the confidentiality/privacy of the involved parties,” and that he “should use the utmost discretion and not discuss the evidence with others.” Sulkowicz, presumably, received the same guidance (otherwise Columbia violated Title IX by setting one procedure for the accused and another for the accuser). Columbia’s policy held that “breaches of confidentiality/privacy or the complainant, respondent, witnesses, or the investigators, may result in additional disciplinary action.”

The Columbia Response

Sulkowicz obviously has ignored that requirement, and responded to the not-culpable finding by going on a media spree, speaking to a wide variety of local, state, and national reporters—as well as, the complaint alleges, coverage in 35(!) other countries. 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.

Bollinger, meanwhile, responded to Sulkowicz’s crusade by announcing new procedures that further weakened the rights of the accused. While making no comment about Nungesser (who, again, Columbia’s own procedures found did nothing wrong), the president also expressed sympathy with Sulkowicz, since when a Columbia student “feels that she has been a victim of mistreatment, I am affected by that. This is all very painful.” Repeated Bollinger statements, including a New Republic article featuring a photo of Sulkowicz, seemed to side with Sulkowicz, while doing nothing to address the harassment of Nungesser or Sulkowicz’s myriad breaches of confidentiality. In fact, Columbia’s strategy—claiming that confidentiality forbade it from defending that fairness of the panel that evaluated Sulkowicz’s claim while simultaneously turning the other way to Sulkowicz’s violations of that same confidentiality—could only leave the impression that Columbia’s administration agreed with the accuser’s complaints.

This campaign, the complaint notes, featured Sulkowicz repeatedly claiming that she was afraid to leave her room, lest she encounter Nungesser on campus. Yet at the time (as Sulkowicz knew), Nungesser was studying abroad (in Prague), and therefore the accuser had no risk of encountering him. The complaint undermines the credibility of Sulkowicz’s public statements in other ways. For instance, the accuser has claimed that she went to the NYPD, but then dropped the case because the police officers didn’t treat her with sufficient sensitivity. In fact, Nungesser met with two Manhattan ADAs, who then informed him that they didn’t have reasonable suspicion to proceed with the case. Three weeks later came Sulkowicz’s seemingly false assertion that she pulled the plug on the case.

The Mattress Allegation

In addition to Columbia and Bollinger, there’s a third defendant in the case—Professor Jon Kessler, who supervised Sulkowicz’s “academic” project of carrying a mattress around campus to symbolize her suffering. The complaint cites Kessler’s public statements corroborating Sulkowicz’s unsubstantiated (at best) account as grounds for a defamation charge. For instance, Kessler told the Columbia Spectator, “Carrying around your university bed – which was also the site of your rape – is an amazingly significant and poignant and powerful symbol . . . with all this evidence coming up … it’s so clear the way uni feels about this issue.” Kessler did not explain what grounds he had for making this statement, nor did he speak to Nungesser to get his side of the story. By publicly targeting Nungesser, the complaint alleges, Columbia authorized gender-based harassment of one of its own students.

The academic/publicity campaign, the complaint alleges, has had its effect; after all, Sulkowicz made plain her goal of creating a situation making it“not safe for him to be on this campus.” Sulkowicz herself liked (on Facebook) one written threat to Nungesser, in a thread that featured one friend of the accuser[i] endorsing Nungesser as the victim of “mob justice“(link no longer active). It seems unlikely, under current conditions, that Nungesser will even be able to attend his graduation. The complaint alleges that Nungesser and his parents have filed repeated complaints with Columbia about Sulkowicz’s conduct, which all but certainly violates even the watered-down restrictions on accusers in the current Columbia policy.

Columbia, according to the complaint, has done nothing. Will a federal court follow suit?