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?