Change of venue: to the court of public opinion.

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Accused Gets His Say in Columbia Rape Case

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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Columbia student Emma Sulkowicz has been carrying a mattress around campus -- the mattress on which she says she was raped -- since the beginning of the school year. Her performance art piece, and her portrait of a campus judicial system that ignored her victimization, have made her the focus of a lot of media attention. She has received awards, and attended the State of the Union as the guest of Senator Kirsten Gillibrand.

Now she's the focus of a lawsuit.

Note that I said "focus," not "target." Paul Nungesser, the man she has accused of raping her, is suing Columbia University; the university's trustees and president, Lee Bollinger; and Jon Kessler, the visual arts professor who advised Sulkowicz on her project. Most of the complaint, however, is devoted to specifically rebutting Sulkowicz's account of what happened on the night they had sex.

In Sulkowicz's telling, they were occasional lovers until one night, as they were having consensual sex, he "suddenly pushed her legs against her chest, choked her, slapped her, and anally penetrated her as she struggled and clearly repeated 'No.' " She did not at first report the assault, but she says she decided to press charges when two classmates told her that Nungesser had been abusive to them too. Columbia's adjudicators bungled the investigation, asked her silly questions, and didn't hear her case for six months. Eventually, they found in favor of Nungesser. She went to the NYPD to press charges, which at least established a police record that would pop up if he were accused again, but ultimately she decided not to continue with the case when it became clear that it would probably drag out past graduation.

Nungesser's complaint is a little drier than the many media articles that have been run about Sulkowicz's side of the story. It's also extremely long, because legal briefs require you to state every detail at great length, down to the smallest and most obvious: "Defendant Columbia University ("Columbia" or the "University") is an elite private Ivy League University located in New York, New York."

But here's the gist of Nungesser's side: The two of them were "friends with benefits." All the sex they had that night was consensual, and initiated at the request of Sulkowicz, who had brought the subject up with him before in Facebook messages that were provided to the court. It did not involve screaming, which could have been heard through the "badly soundproofed" dorm walls. It did not involve choking, which would have left marks that would have been noticed at social events in the days following the encounter -- and apparently were not.

Nungesser's suit says that Sulkowicz was friendly toward him and sought out his company, both before and after the encounter she later called rape. Indeed, he alleges, she seemed to be developing intense affection for him. When he did not reciprocate, she became "viciously angry" and filed charges against him with Columbia, more than seven months after the night in question. She also recruited two other female Columbia students to file charges. One said that Nungesser had grabbed her and tried to forcibly kiss her at a party, the other that their sexual relationship while they dated was unhealthy and abusive. The complaint suggests that Sulkowicz has a "history of alleging of sexual assault": she told Nungesser that she had been raped in high school, and had also told him that she had been abused and sexually assaulted by other students at Columbia.

The university found him "not responsible" in all three cases, despite the weak standard of proof required to find against him ("preponderance of the evidence," which in layman's terms means "just barely more likely than not"). Sulkowicz went on an increasingly public campaign against him, which eventually proceeded to filing criminal charges (which the district attorney declined to prosecute), making his name a matter of public record. Her campaign culminated in the performance art project with the mattress.

Even though campus sexual-misconduct investigations are supposed to be confidential, the university permitted her to violate those rules, and indeed, is giving her course credit for harassing him, while Nungesser was unable to respond because of those same confidentiality rules. His name is now inextricably linked to Sulkowicz. Anyone who Googles him will immediately see he has been accused of rape -- frequently and prominently. He faults the university for that, because it did not enforce its confidentiality rules and because the art professor supported the project.

Got all that? I'm not going to offer an opinion on which side is telling the truth; most such opinions break down along predictable lines, with feminists treating this as yet another case of a rapist branding his victim a liar, and the other side claiming that yet another media rape story has been proven false. Me, I don't know. While many campus rape cases involve people who basically agree on the details, but disagree on the implications, this is a case where one side has to be simply lying, or gravely misremembering.

Sulkowicz's account definitely has some problems. Weeks after the encounter, her messages to Nungesser are not what you would expect from an assault victim to an assailant: "wanna see yoyououoyou" and "I love you Paul. Where are you?!?!?!?!" If the complaint is to be believed, she's also fudged some details to reporters, such as telling reporters she withdrew the criminal charges, instead of admitting that they were dropped.

On the other hand, these problems don't prove that the sex was consensual. People do crazy, unexpected things, particularly people who have been through trauma. They sometimes escape injury even when you'd expect it: I have a friend whose car spun out of control across the highway median and was hit by six other cars, which gave her ... a bruised knee.

I think the complaint tells us that one person is lying about what happened that night; it doesn't tell us which one. What I will say is that if Nungesser's account is correct, it's easy to see why he wants to sue. What's harder to see is how he could win this lawsuit.

Nungesser's biggest quarrel is not with Columbia, but with Emma Sulkowicz, who is not named in the lawsuit. He is trying to hold Columbia responsible for her behavior under several theories. Nungesser argues that the university:

  1. Violated his civil rights by allowing Emma Sulkowicz and her professor to stage a prolonged campaign of "gender based harassment" against him, under Title IX of the federal Civil Rights Act and similar New York State laws.
  2. Breached contract by failing to protect him from gender-based harassment and "maintain the confidentiality and privacy of parties involved in gender-based misconduct investigations."
  3. Violated the covenent of good faith and fair dealing in the implied contract between Nungesser and Columbia.
  4. Engaged in deceptive trade practices by promising equal treatment regardless of gender.
  5. Intentionally inflicted emotional distress.

I don't find this litany of complaints particularly compelling. Columbia didn't railroad him because he's a man; the university actually found him not guilty. Nor does Columbia have the power to force Sulkowicz to stop telling the world that he's a rapist. Perhaps the university shouldn't be giving her course credit for doing so, but this seems a pretty thin reed upon which to hang a lawsuit. The rest of the complaints are even thinner, for example, that President Bollinger issued some mealy-mouthed platitudes about how distressing this all is and that the university covered some of the cleanup costs for an anti-rape rally in which his case was prominently featured.

Nungesser is not the first man to sue his college over unequal treatment of men in the campus system of adjudicating sexual offenses. I've read some of the complaints, and they are wounded, outraged litanies of arbitrary treatment by a system that is opaque and far from accountable. But the cases I've looked at generally end up getting dismissed (including a recent one against Columbia), because even if all the facts were true as stated, they didn't add up to proof that these men were treated differently specifically because of their gender. Due process complaints like this one against Michigan are probably a more fruitful avenue, but that's not available against private schools.

That doesn't mean that they weren't treated differently. As Emily Yoffe put it, "The legal filings in the cases brought by young men accused of sexual violence often begin like a script for a college sex farce but end with the protagonist finding himself in a Soviet-style show trial." The procedural protections are minimal, leaving the accused at the mercy of the administrators running the investigations. There is also evidence of disparity in charging: for example, at Occidental, when two drunk students had sex, the male student was charged with sexual assault while the woman was not.

It's possible to make an argument for this sort of disparate charging: that women are at far greater risk from STDs and pregnancy, and that emotionally, they are likely to find a drunken hookup far more distressing, and so therefore, men who have casual sex with drunken women are taking advantage of them, and guilty of a crime that the women are not. But no one is making this argument, partially because it's a fairly hardcore traditionalist stance on gender differences, and partly because it would probably not withstand legal scrutiny. So instead we stealthily incorporate this assumption into the system, without ever letting it speak its name. The system by which many colleges adjudicate these cases is an uneasy compromise between what we would like to believe, and what we actually seem to. One of de jure equality and de facto discrimination. One where a drunken freshman is presumed to be able to form intent to commit a crime -- namely deciding to have sex with a woman who is presumed unable to form proper intent, because she is just as drunk as he is.

But seeing a hazy pattern of unspoken assumptions in campuses across the land is not the same thing as proving a particular case of gender discrimination on a particular campus. That's a heavy lift, which is why I do not place high odds on Paul Nungesser succeeding, even if everything he says is true about how he was treated.

These cases would have a better shot of prevailing if they could make a case that there is systematic discrimination against large numbers of accused men. But the system is explicitly designed to prevent that, with confidentiality rules that make it impossible to do the sort of broader statistical analysis that could show a pattern of discrimination against men. Campus anti-rape activists often praise the university systems for being more accommodating to rape victims, and keeping the proceedings private. These features, however, mean that they can turn into a star chamber, with no way to know whether men are being treated differently, or fairly, unless one of them decides to spend a lot of time and money suing the school. Which the system also discourages, because the lack of broad information makes it hard to win that lawsuit.

But 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.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Megan McArdle at mmcardle3@bloomberg.net

To contact the editor on this story:
Philip Gray at philipgray@bloomberg.net