Shame on Gillibrand

Apart from Claire McCaskill, no senator has more aggressively advocated weakening due process protections for students accused of sexual assault than New York senator Kirsten Gillibrand. She continued her anti-due process crusade in two high-profile moves this week.

Emma Sulkowicz (Andrew Burton/Getty Images)
Emma Sulkowicz (Andrew Burton/Getty Images)

First, Gillibrand invited Columbia student Emma Sulkowicz as her special guest for the State of the Union address. Sulkowicz has attracted international media attention for her “performance art” project of carrying a mattress around campus to protest what she considers Columbia’s insufficient response to a student she claims sexually assaulted her. No evidence exists that the student did, in fact, sexually assault her: even under Columbia’s extraordinarily imbalanced sexual assault policy, which tilts nearly all procedures in the advantage of the accusing student, the disciplinary panel didn’t find Sulkowicz’s allegation credible. Why Gillibrand came to believe Sulkowicz remains unclear.

It’s also unclear what message Gillibrand intended to send in selecting Sulkowicz, whose approach to criminal justice issues appears to be precisely what members of Congress should not encourage. Sulkowicz found the time to speak about her experiences with MTV, the Guardian, a local TV station, and several other media sources—but she wasn’t able to spare the time to follow through with the police about her complaint. (Or at least so she implied—the student she accused has suggested that actually the police looked into the matter and elected not to continue with the investigation, something that Sulkowicz never had previously admitted). It would seem that a senator would want to encourage actual crime victims to speak with police instead of the media, rather than the reverse. A cynic might suggest that the New York senator, like Sulkowicz, is more interested in public relations than in securing justice.

Even more troubling, however, was a Huffington Post essay penned by Gillibrand to accompany her invitation. The New York senator explained that she reached out to Sulkowicz to show solidarity with a student who “carries her mattress everywhere she goes to symbolize the burden she carries every single day as long as her rapist is still on campus.” Note the senator’s remarkable word choice. Gillibrand didn’t say “as long as her alleged rapist is still on campus.” Or “as long as the person she says raped her is still on campus.” No: Gillibrand, a sitting U.S. senator, has described a Columbia student as a “rapist”—that is, someone guilty of a criminal act—based solely on an allegation from a single person. And not merely a generic type of allegation, but one that even Columbia didn’t deem credible and the police did not pursue. As FIRE’s Ari Cohn has pointed out, with this statement Gillibrand laid “bare her disregard for rights of the accused.” For the senator, “allegations of rape = guilty of rape.”

Imagine the reaction of the Times editorial page if a New York senator on virtually any other criminal justice issue described as guilty of a criminal act a resident of the state who (a) hadn’t even been criminally charged and (b) had been deemed non-culpable of any criminal activity by an internal inquiry. Doubtless we’d encounter a (not inappropriate) history lesson on the importance of due process and the presumption of innocence to the American project, and a denunciation of the senator as ill-informed at best and a demagogue at worst. Yet on this matter, the Times (both in the editorial and on the news side) has ignored Gillibrand’s comments.

I suppose that, at the least, Gillibrand deserves praise for her candor. But the idea that someone making laws for all of us could actually believe that a person can be guilty solely on the basis of an accusation is a chilling thought.


  • KC Johnson

    KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

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22 thoughts on “Shame on Gillibrand

  1. Gillibrand said on MSNBC that Sclove was “nearly choked to death.” In fact, Sclove herself said her friend Dan pushed her up against a telephone pole with his hand on her throat. She said it hurt and she said stop. So he did. Immediately. And he apologized. This is Sclove’s own account of the incident. Sclove also said he offered to walk her home. Her complete account of the incident makes it clear that nothing was stopping her from accepting his offer to walk her home or simply going home herself. When Dan’s roommates arrived, she did just that. Got up and left.

    No rape occurred ACCORDING TO SCLOVE. But people like Gillibrand encouraged this vulnerable young woman to turn bad sex into a rape accusation. Sclove could have recovered from having sex with a friend who didn’t want a serious relationship and who was (according to Sclove’s account) an insensitive lover. Instead she has been cynically used as some kind of symbol to attack the attempts of universities to deal with a the difficult and terrifying problem of campus sexual violence.

    Maybe Brown does a good job trying to stop violence on its campus. Maybe not. But this has little to do with Sclove. She doesn’t deserve to be used as part of a hatchet job.

    Sclove is clearly suffering, not from a bad night of sex, but from being used in this awful, awful way. Her therapist, morons like Gillibrand who don’t do their homework, and even her parents have “helped” Ms. Sclove to hurt her friend and have helped her to turn one bad night into a life-changing nightmare. If she’s lucky, she will realize she has been horribly misled and manipulated and will someday apologize to her friend Dan and perhaps begin a real healing process. If she’s unlucky, she will live a whole life of exaggeration and lying and everything is a crisis and I am always a victim and will never recover.

    Sclove knows what happened. She was there. She doesn’t have PTSD because her friend Dan tried to be sexy and domineering and his attempt crashed and burned. She said stop, he apologized. This is according to her own account. She has PTSD because she’s been manipulated by outsiders like that idiot who was standing next to her as she delivered a halting (and heartbreaking) press conference in which she acted as the spokesperson for someone else’s political agenda.

    There are many, many real victims of sexual violence out there. Turning Sclove’s misguided hookup into rape is a monstrous affront to the real victims, to Sclove herself, to her friend Dan, and to decent people everywhere who actually think before they speak.

  2. This whole campaign is the French Reign of Terror repeating itself. About the only thing missing is the requirement that any dropping of charges (or finding that an accused is innocent) must be approved by the Committee of Public Safety, or the persecutors must retry the case until they get it “right.”

    This mockery of justice has no place in the United States. Both Gillebrand and Laura Dunn need to go to prison for using the legal system to forcibly inflict it on innocent men.

  3. Does Senator Gillibrand have equal empathy for Juanita Brodderick, Kathleen Willey or Paula Jones as for Emma Sulkowicz?

  4. Doesn’t Gilliband have two sons? It’d be interesting to see what Gillibrand did if one of THEM was accused of “rape” after he arrived at a college. Gillibrand would probably hire some sleazy private investigator to destroy the accuser’s reputation, and then use the full force of her office to get the college to sweep the whole thing under the rug … basically all the stuff that she keeps FALSELY accusing everyone else of doing.

  5. It is past time for the civil justice system to start dismantling this phony rape culture like the “recovered memories” hoax was dismantled. That ended suddenly when malpractice insurance for psychologists was ended for this practice. It was like turning out a light bulb. I’m sure Gillibrand would be willing to give up her assets to make a point. After all, the civil rights marchers actually risked death in the 1960s, unlike the fake protesters today.

  6. Gillibrand herself recently claimed she had been sexually harassed by Senate colleagues but refused to name them. She’s a professional victim.

  7. Someone should start looking into how student media were complicit in this campaign.
    I recall the Columbia Spectator being praised by Title IX activists for the way they reported: Not questioning the accuser, letting her say what she wants, ways to avoid using the phrase “alleged” without being liable, etc.
    They had even a business partner of Sulkowicz’s dad write an op-ed after the open letter by her parents wanted to have the guy expelled for lying because he defended himself during the hearing.

  8. Any lawyers in the house? Since this guy has already been identified, does he have a libel/slander case against Gillibrand?

  9. It seems to me that Ms. G’s written statement/editorial constitutes blatant libel, for which she should be held accountable. Aren’t there any conservative-leaning attorneys (Landmark Legal, eg) who would take the case pro-bono?

  10. While commenters here and at Instapundit (who picked up Prof. Johnson’s piece here) comment on the potential of a libel suit against the Senator, I wonder if Huffington Post, by printing a piece that might be considered libel in a court of law, also would be at risk for judgment. The editors can’t honestly say, “well the senator wrote it and that’s good enough for us!”, can they?

  11. Let us also add this atrocity, in reference to the Lena Sclove/Daniel Kopin case at Brown, to Gillibrand’s offenses. Courtesy Daily Beast: “In a May 6 appearance on MSNBC, Sen. Kirsten Gillibrand (D-NY), who has championed the cause of sexual assault survivors on campus, said that Sclove was not only “brutally raped” but “nearly choked to death”; while she did not name Kopin on the air, she asserted that “he should be in jail, not with a one-year suspension.” (While Sclove made a police report seven months after the incident, no criminal charges were ever filed against Kopin.)”

  12. I too am surprised by Gillibrand’s choice – it would have been far more consistent with her character if she had invited “Jackie,” the now-completely-discredited accuser from the “Rolling Stone” article. Or maybe the author of the “Rolling Stone” article. Or both. In the Age of Obama, whenever your credibility is destroyed, or you are repudiated in a midterm election, or whatever, you should simply ignore the repudiation and loudly DOUBLE DOWN on your discredited position.

    If I were the “accused” student from Columbia, I’d seriously consider suing Gillibrand in her personal capacity and seeking a ruinous level of punitive damages. For someone in Gillibrand’s position, I’d say that $10 million or so would be “ruinous.” Or, I might just ask the court to give the plaintiff the royalty rights to the fool’s book that Gillibrand “authored” a few months ago about the “culture of rape.”

    Gillibrand didn’t make this statement at some committee hearing or on the floor of the Senate. She wrote it in the Huffington Post – and she is therefore completely outside the legal protections of congressional immunity. From a liability standpoint, writing that article was a surprising mistake for someone like Gillibrand – who is presumably surrounded by high-priced legal advisors – to make. Yeah, she might not have personally named the student, but his name is already a matter of public record.

    In terms of liability, Gillibrand’s ass is hanging in the wind right now – and she has no one but herself to blame for it.

  13. Gillibrand’s statement appears to be a prima facie case of defamation. I hope the young man does something about that.

    1. As in suing? Good luck. Attorneys are charging about $200,000 to take a case. Until that changes, nothing else changes

  14. “Sulkowicz found the time to speak about her experiences with MTV, the Guardian, a local TV station, and several other media sources—but she wasn’t able to spare the time to follow through with the police about her complaint. ”

    Sulkowicz did actually go to the police. However, that was *after* she went through Columbia. Otherwise nice piece.

  15. Of course the NYT shows no reaction. They featured Sulkowicz in several articles and factually made her the rising star of activists in 2014 ( Her access to the NYT was easy, as her father, Kerry Sulkowicz has frequently been interviewed and quoted by the NYT. The NYT effectively was part of the professionally orchestrated campaign. Roberta Smith, NYT major art critic, endorses her campaign ( and her husband Jerry Saltz called it the greatest art piece in 2014.
    Now, why would the NYT take a stand on this, if they are part of the campaign?

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