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An alleged rapist is suing Columbia University for failing to silence his accuser after he was found innocent of sexual misconduct in a school investigation. But things are complicated by the fact that the accuser transformed her anger over the institution’s (mis)handling of her allegations into a performance art piece that went viral on the Internet and brought international attention to everyone involved.
Emma Sulkowicz says that on the first day of her sophomore year in 2012, she was raped by a fellow classmate. “I was raped in my own dorm bed,” she said in a video interview with the Columbia Daily Spectator. “Since then, it has basically become fraught for me, and I feel like I’ve carried the weight of what happened there with me everywhere.” Sulkowicz alleges that in August of 2012, during an otherwise consensual encounter, her attacker suddenly struck her, pinned her down, raped her despite her protests, then fled.
Other accusers came forward alleging the same man—an international student from Germany at Columbia on a full scholarship—was guilty of sexual misconduct and eventually an investigation was carried out. One woman accused him of groping her at a party and another asserted that during their months-long relationship, he was emotionally and physically abusive.
Sulkowicz wrote a piece for Time describing her ordeal and the difficulty of reporting the incident in which she accused the school’s investigative committee of asking inappropriate questions during the hearing. “One panelist kept asking me how it was physically possible for anal rape to happen,” Sulkowicz said. “I was put in the horrible position of trying to educate her and explain how this terrible thing happened to me.”
“Every day, I am afraid to leave my room,” she added. “Even seeing people who look remotely like my rapist scares me. Last semester I was working in the darkroom in the photography department. Though my rapist wasn’t in my class, he asked permission from his teacher to come and work in the darkroom during my class time. I started crying and hyperventilating. As long as he’s on campus with me, he can continue to harass me.”
At the beginning of her senior year in 2014, upset over what she claims was the mishandling of her allegations by the school—the first hearing was reportedly held seven months after she filed a report alleging sexual assault—Sulkowicz turned her anger into a performance art piece titled “Mattress Performance (Carry That Weight).” Described as “endurance art,” Sulkowicz carried a 50-pound mattress with her everywhere she went on campus, externalizing the internal, symbolizing the psychic weight of her trauma, dragging something that happened behind closed doors out into the light of day. Sulkowicz said her piece was protesting what she considers the college’s mishandling of her allegations and her alleged rapist’s continued presence on campus. Though she declined to file formal charges with authorities claiming the process would “be too draining,” she vowed to shoulder her burden until he was expelled from the institution or publicly shamed into leaving voluntarily.
The performance piece went viral, drawing international attention, spawning a host of articles, and sparking demonstrations in her honor where students hauled mattresses out of their dorms and into the campus quad in a show of support and solidarity. Online, social media was awash with images of Sulkowicz carrying her mattress around Columbia’s Morningside Heights campus and people took to Tumblr and Twitter to cheer her on and denounce and threaten her alleged rapist.
People seemed inspired by the spirit of vigilante justice and willingly participated in the public shaming of her attacker. Art critic Jerry Saltz called the piece “pure, radical vulnerability.” Students rallying behind her cause posted fliers identifying her alleged attacker with the label “serial rapist” in public bathrooms around campus and the Columbia Daily Spectator decided to publicize his name in print alongside the allegations.
But here’s the thing: After an investigation into the allegations by the institution, he was found innocent and cleared of any responsibility. Only the damage to his reputation had already been done.
Now Paul Nungesser has filed a lawsuit against Columbia University, the school’s president, and the professor who approved the performance piece as Sulkowicz’s senior thesis. In the suit, Nungesser alleges he is the victim of a harassment campaign and accuses the institution of not only failing to silence his accuser after he was found innocent but endorsing her accusations.
According to the New York Times, the lawsuit states that “By refusing to protect Paul Nungesser, Columbia University first became a silent bystander and then turned into an active supporter of a fellow student’s harassment campaign by institutionalizing it and heralding it.” The suit also accuses the professor who approved the project as having “publicly endorsed her harassment and defamation” and notes that “she is actively earning course credit from Columbia for this outrageous display of harassment and defamation,” which the suit refers to as “gender-based” and claims created “an intimidating, hostile, demeaning… learning and living environment.”
Nungesser’s attorney Andrew T. Miltenberg added, “He’s become the poster boy for something he didn’t do.”
The complaint against the college says Nungesser wants to stay in the United States to pursue his relationship with his new girlfriend and consulting work in New York City but claims his employment prospects (and his visa eligibility) have been severely jeopardized by the school’s tacit endorsement of Sulkowicz’s allegations, according to the Washington Post. It argues that Columbia’s refusal to prohibit her protests makes the school complicit.
In an email, Sulkowicz, who is not named in the lawsuit, told the New York Times, “I think it’s ridiculous that Paul would sue not only the school but one of my past professors for allowing me to make an art piece.” She also called her thesis “an artistic expression of the personal trauma I’ve experienced at Columbia.”
But what Nungesser claims is that Sulkowicz’s piece transcends artistic expression and crosses the line into harassment and public defamation of character, which compromised his reputation, right to privacy, and an environment conducive to education.
“It’s explicitly designed to bully me into leaving the school—she has said so repeatedly,” he said. “That is not art. If she was doing this for artistic self-expression or exploration of her identity—all these are valid motives. Scaring another student into leaving university is not a valid motive.”
In allegations of abuse, especially in instances where there are multiple victims accusing a party of sexual misconduct, it’s a common impulse to come to a foregone conclusion of guilt, to want to side with and protect the victim(s), to attempt to honor the horrific nature of such an ordeal and prevent further suffering by accepting an account unquestioningly. However, in an in-depth investigative article and interview with the accused at the Daily Beast, Nungesser, who’s always maintained his innocence, presents compelling evidence that calls into question the clear-cut nature of a case where more than one person is asserting allegations.
Nungesser offered the Daily Beast detailed accounts and records of his relationships with his accusers, whom he claims colluded in an effort to smear him. He provided screenshots of social media interactions with his accusers that occurred after the alleged abuse, which he says show they weren’t uncomfortable interacting with him and argues is proof of his innocence. (Sulkowicz has already disputed Nungesser’s version of events in an interview with Jezebel where she claims timestamps have been removed to hide the fact that the conversations took place before the incident occurred and contain strategic omissions.)
He also argues that because those proceedings had a lower burden of proof for the complainant based on a preponderance of evidence that compels investigators to find in favor of the complainant if they think it is slightly likely assault occurred, and he was still found innocent, than he must be innocent.
Nungesser caused controversy with his comment to the New York Times that he was raised a feminist. His mother—who wrote about gender issues during her career in journalism, according to the Daily Beast—agreed, saying, “I think we did not just tell him that men and women are created equal, but we lived it.” His father expressed upset that the school did not publicly stand by its acquittal and his mother lamented that the mainstream media never sought her son’s side of the story. “Going back to our own history, the media in western Germany were built upon the model of the New York Times,” she said. “It was the idea of good journalism, of good fact-checking, of not doing propaganda.”
The article is compelling but certainly does not prove his innocence. The truth of how events occurred is at best obfuscated and unclear and likely to stay that way. At the very least, though, it argues for withholding judgement when forming an opinion about the allegations.
But are innocence and guilt relevant in a discussion of whether it’s appropriate to step outside systems of justice and publicly accuse a party? It’s an important consideration given that Sulkowicz is not the first person to take the tact of publicly shaming an alleged attacker into withdrawing from an institution. Lena Sclove, who Sulkowicz called an inspiration, successfully compelled a man she accused of sexual assault into dematriculating. If Sulkowicz or Sclove’s goal was to warn other women about someone they believe poses a threat and they circumnavigated the college’s independent investigation to do so, is that OK?
You cannot Google Nungesser’s name without the words “serial rapist” coming up in close proximity. This has not stopped him from entering into a new relationship with a woman who claims to trust him implicitly, who claims the allegations are far removed from the person she’s come to know. It might stop Nungesser from getting a job and remaining in the country, though, which is the basis of his lawsuit against Columbia, filed in a Federal District Court in Manhattan this week.
The reason legal and journalistic standards require the word “alleged” and our justice system maintains the presumption that people accused of crimes are innocent until proven guilty is to refrain from harming an individual’s reputation and standing in society until their guilt is established beyond a reasonable doubt or through a preponderance of evidence. In this instance, though, the accused was publicly outed as a rapist while an investigation was still underway and continued to be publicly labeled as such after being found innocent by the system in place to evaluate his actions. The Internet insured the international dissemination and preservation of those accusations.
The question of whether vigilante justice and public shaming are appropriate when frustration with bureaucratic channels boils over will not be decided by Nungesser’s suit against Columbia, however. In the age of the Internet when information travels so fast, how can we carefully and compassionately handle allegations of this nature when there are conflicting narratives? And how can we guard victims from further trauma while protecting the accused’s right to privacy and presumed innocence until an investigation is carried out and a ruling is made?
While Nungesser’s lawsuit against Columbia raises interesting questions about privacy and protecting one’s reputation in the face of harmful allegations in the online era, Sulkowicz’s piece is contributing important momentum to a national conversation. Regardless of the truth in this case and the matter of whether Nungesser should have remained nameless, what is true is that Sulkowicz’s performance resonated as important with many frustrated people and called much-needed attention to how allegations of sexual misconduct are handled (or mishandled) in higher education. Her story is not an isolated incident and happened at a time when our country was finally admitting the need for reforming abuse reporting and response inside hallowed halls.
In May of last year, the Department of Education’s Office of Civil Rights formed the White House Task Force to Protect Students from Sexual Assault and released for the first time a list of all the institutions being investigated for mishandling of sexual assault and harassment cases under Title IX—a portion of the Gender Equity Law which prohibits gender-based discrimination at schools that receive federal funding. “One in five women is sexually assaulted while in college,” the report opens. “Most often, it happens her freshman or sophomore year. In the great majority of cases, it’s by someone she knows—and also most often, she does not report what happened. And though fewer, men, too, are victimized.”
“We can’t even agree on the definition of consent,” said Sen. Claire McCaskill that same month, when she held discussions on drafting legislation aimed at improving how colleges report and combat sexual assault, citing a “complex labyrinth between different rules, different standards of proof, different state statues.” Sulkowicz has become a symbol of everything that is flawed in the system of abuse reporting in higher education, her mattress a reminder of the seeming ubiquity of rape culture on college campuses.
Female comedians have recently attacked rape culture at its fountainhead with bits that smartly satirize a society that socializes people to think exerting power and control over someone else without their consent is acceptable. Sarah Silverman and Amy Schumer’s respective “don’t rape” bits remind us the ideal is stopping the issue before it arises by raising people right.
Sulkowicz has said she may well carry her mattress on stage during her commencement ceremony—which Nungesser will be attending as well—and drop it there in front of everyone after graduating.
The metaphorical weight of enduring an assault cannot be put down so easily and is a burden no one should have to bear alone. The National Sexual Assault Hotline (1-800-656-HOPE) can connect callers in need of support to local crisis centers across the country.
JC Sevcik is a former political contributor to the Daily Dot with a focus on police, social justice, and surveillance. He has also written for United Press International.