What brought me around most* to "this guy may very well have been innocent and has possibly gotten royally screwed" was just how lame the other rape accusations apparently are. I agree that if there's smoke with multiple accusations there's a much greater likelihood of fire, but the other accusations were apparently (a) a "forced kiss" for which there was no supporting evidence and (b) an allegation by an ex-girlfriend/FWB that he only wanted see her if they were going to have sex, which made her retrospectively feel coerced. Neither one of those really screams out "brutal rapist" even taking the accusations as true. And, on those points, it would be very odd if the Complaint were simply mischaracterizing what happened, since that's describing allegations from third parties and separate university investigations.
But there are so many interesting, weird legal/policy issues here. Like, what if instead of the mattress project, she had just written a short story about her experience, with a thinly veiled character who was Paul? It seems to me that it would be completely ridiculous to hold Columbia responsible for any liability at all for giving her course credit for that, even if people could identify him in the story and hold him responsible. But, the mattress project combined with her other actions and the university's actions feels really very different than that, like a conscious decision to allow one student to hound another one out of the school and cause really serious harm. That definitely does seem like something a college should have an obligation to stop.
*other than being a man, of course.
It's not just about whether Columbia can make a student stop making accusations, but whether it has a responsibility for what she's saying/doing once it allows her activity to be counted towards graduation.
He "wins" if he settles for $1, and the terms of the settlement are confidential. Assuming that his goal is for some sort of vindication stories to pop up when he's googled.
2 posted before reading 1, and anyway I'm not talking to Halford because he inveigled me into reading something by MM.
I think the course credit thing is a red herring -- that is, Halford's point about the short story is, I think, right. What's arguably doing the guy harm is that it's turned into a cause celeb, and that's not what she's getting course credit for -- she'd get the same course credit if no one outside her art class cared about the mattress, just as if no one read the short story.
The other weird thing is the idea that the failure of the disciplinary process to make a finding that the rape did happen, should be regarded as a conclusive finding that the rape didn't happen, enough that the college should in some way stop her from saying it did. This seems wrong to me.
And yet, if he's innocent, her behavior is certainly doing him a lot of damage, and maybe that is something a college should stop.
I thought the most interesting part was that anal sex (in his telling) has to be described as "foreplay" because we live in such a PIV-centric world.
That was odd. And one desperately hopes anyone thinking along those lines knows to change condoms inbetween.
If the short story was to be published in the school magazine, or was selected by the University to be read aloud at graduation, it would be closer. The mattress thing isn't just in her art class, it's very public, and designed to communicate specific messages about the guy, and about Columbia's system for adjudicating complaints.
For the rest of all time, people will be saying "if he's innocent" about a guy who has prevailed on the lowest standards there are. That's, as you say, a real injury, if he's innocent, which the University, having reached the conclusion it reached in its processes, ought to have considered at least more likely than not.
I think they should give him his dollar.
He's pulling a bit of neat stunt by not suing her for defamation. If he'd done that, the truth of her allegations against him would be directly at issue. But the way he's framed it, he's avoiding any direct litigation over their truth, and trying to rely instead on the findings of the disciplinary process as conclusively establishing that he did nothing wrong for the purposes of this lawsuit. She's not a party, the college has no direct knowledge of the facts or interest in proving that the assaults happened, so his version of the underlying facts should go pretty much unchallenged.
9 It is a neat trick, because the University can't really use the truth of her accusations as a defense. Not without destroying its own process for adjudicating these things.
Worth a dollar all by itself.
but the other accusations were apparently (a) a "forced kiss" for which there was no supporting evidence and (b) an allegation by an ex-girlfriend/FWB that he only wanted see her if they were going to have sex
Wasn't one of them found to be substantiated, then he got it sent back for a new hearing on an administrative appeal, and the complainant had graduated and didn't want to continue participating in the process so she dropped it? That's not a final finding of guilt, but it's kind of different from the accusation having been nonsense on its face.
It's kinda Swiftian when you step back and look at the big picture.
So, if he's successful here, then any allegation of sexual assault taken to a college's disciplinary process that doesn't culminate in a finding that the allegations are true, ends up as a gag order on the accuser -- the disciplinary process conclusively clears the accused, and the college is now responsible for keeping the accuser from talking about it publicly.
That really can't be the right answer -- if you were assaulted, and wanted to both stay at your school and be able to publicly accuse the person who assaulted you, you couldn't take it to the school's disciplinary process because if you lost there, you'd have to shut up or leave the school?
Basically, the university either has a serious system for investigating and prosecuting rape accusations or it doesn't. If it does, it seems to me that (especially on a preponderance of the evidence standard, and especially if the Complaint's allegations about what actually happened are true) it probably has an obligation to then make sure that a student who has been found not responsible for rape isn't constantly hounded at the university with accusations of being a rapist, at least not in ways that are readily preventible by the university. This is especially true on a preponderance of the evidence standard, since the adjudicative body decided that it was more likely that the rape didn't happen than that it did based on the evidence, which isn't quite the same thing as finding it more likely than not that the accusation was false, but isn't that far from it, either.
One of the odd things about the case is that everyone -- Columbia, Sulkowicz, Nungesser -- all may want to show that Columbia's rape investigation process sucks. Sulkowicz, for obvious reasons. Nungesser, because he's arguing that it was biased in favor of the accuser and didn't allow him to present evidence. And Columbia, because one of Columbia's best defenses is "hey everyone knows that these weren't definitive proceedings that could really establish whether or not she was raped, so we didn't really have any obligation to prevent her from going around saying that she was."
11 Yeah, the forced kiss appeal really does demonstrate that their system is poorly set up.
it probably has an obligation to then make sure that a student who has been found not responsible for rape isn't constantly hounded at the university with accusations of being a rapist, at least not in ways that are readily preventible by the university.
This doesn't sound unreasonable at first glance, but 'constantly hounded' and 'readily preventible' are both expandable kinds of words -- if there's a standard like this established as a result of this case, I think it doesn't just go to big-news publicity stunts like the mattress project, but very quickly turns into a complete gag order for accusers.
11 -- I'm not sure, but even taking it on its face (as alleged in the complaint anyway, I haven't looked beyond that) the complaint, from a friend of Sulkowicz, was that he'd grabbed a woman at a party and tried to kiss her. Not exactly good behavior at all and probably should be punishable by the university but not enough to trigger "oh yeah this guy for sure sounds like a serial rapist," which was my vague sense of affairs before reading the complaint.
if he's successful here, then any allegation of sexual assault taken to a college's disciplinary process that doesn't culminate in a finding that the allegations are true, ends up as a gag order on the accuser
That doesn't seem like it's necessarily the result. You could have a rule where the accuser is reasonably free to speak about the rape, but the college has some obligation (at least if the accusations become public or newsworthy) to say that the accused was found innocent. Or a rule that permits speech by the accused about the incident, but not the kind of pretty harassing campaign that the mattress project was. There's for sure a complicated line-drawing problem here, though. It's interesting!
And, another odd thing about the case is that it seems like Columbia's stated policy was to impose a gag order on all sides to the proceeding -- that is, require total confidentiality -- no matter what. But then it chose not to enforce the gag order that was (apparently) their official policy in any meaningful way.
13 I think there's space between carrying on a university sponsored/accredited publicity campaign and being forced to shut up. But, basically, this is what happens in the real world. Accusing someone of a crime that they've been acquitted of is defamation per se, right?* We'd say that the space between reasonable doubt and preponderance might provide room for the acquittal being non-preclusive, but here's that space collapses because of the low burden.
* Or am I wrong about that?
I think that's got to be wrong. Acquittal (in a criminal trial) is by reasonable doubt, but the truth of an allegedly defamatory statement is an element of the case that only needs to be established by a preponderance. I don't remember dealing with this ever myself, but I can't see why a criminal acquittal would matter.
E.g. Sweet Sue says "Black Bart killed my father, and was never tried for it!" Bart sues Sweet Sue for defamation, she demonstrates by a preponderance of the evidence that he killed her father, and Bart's defamation claim fails. But if she says "Black Bart killed my father, and was wrongfully acquitted," he sues her, she has the same evidence sufficient to show that he did it by a preponderance of the evidence, that doesn't matter and the defamation claim succeeds? That can't be right.
but here's that space collapses because of the low burden.
I don't think that works to make it per se defamatory -- why would a court rely on the college's fact-finding as superior to its own?
19.1 -- it's defamation per se, but that just means it's definitely defamatory if false. You can still prove up truth as a defense. So, e.g., if you called OJ a murderer after he was acquitted, he could sue you, but you could still put on a trial where you proved up the case for him being a murderer.
Right, the acquittal is neither here nor there -- the accusation of a crime is defamation per se, but the acquittal doesn't change anything.
Pwn'd by 20. Hope I'm not wrong, because this is an area where IA practicing L and am pretty confident.
(And I had been forgetting what 'defamation per se' meant -- I had been lazily reacting to Charley's comment as if it meant that after an acquittal there's an irrebuttable presumption that any statement accusing the defendant of the same crime is false. TRO is using it right -- it still has to be proven true or false, 'per se' in context just means you can show that it's defamatory without establishing that you were damaged.)
21 -- I'm not saying that a university acquittal would be preclusive in a civil case. It's an analogy. If we used the same standard for acquittal that we use for defamation liability, then an acquittal would be preclusive. But we don't, so it isn't.
Here, the university has determined that its more likely than not that the assault didn't happen. It seems to me that it could say, on that basis, that public statements to the contrary would amount to harassment. Which the University (surely) has policies against.
It seems to me that it could say, on that basis, that public statements to the contrary would amount to harassment.
Which gets us right to my 13. Which I find really troubling.
I guess the better analogy is that I sue Halford for battery claiming that he kicked me in the knee. We have a trial, and the jury decides, on a preponderance standard, that he didn't kick me in the knee. I launch a campaign to have the notorious knee kicker drummed out of the bar, it starts to gain traction, so he sues me for defamation. It seems to me that the prior judgment is going to be preclusive. Or not?
27 Right, but as I said, I think there's a lot of space between a gag order and harassment. Which, if the conduct is taking place in a university and subject to specific rules about whether it's to be given credit, has to give the university some room to take some responsibility.
I also think that you're underrating the difference between "The evidence fails to show that it's more likely than not that the accusations are true" and "The evidence shows that it's more likely than not that the accusations aren't true". In a pure he-said/she-said case (which I think this was), if the finder of fact throws up their hands and doesn't know who to believe, that's an acquittal, but it's not a finding that it's more likely than not that it didn't happen.
Well, in this case Sulkowicz has said, I believe publicly, that the purpose of her project is to force him out of Columbia and to shame him (and the Columbia rape tribunal process, as well, of course). That seems like something different than merely talking about the incident at all.
Right, but as I said, I think there's a lot of space between a gag order and harassment.
I don't. The project she's getting credit for doesn't use his name. Any association of him with the project is through things she and others have said outside the context of the credit-bearing project. Obviously, the project is what's driving the publicity, but to keep his reputation from being damaged you'd have to keep her from calling him a rapist at all.
31 Exactly.
A university has to be able to define and discipline harassment. And saying that all restrictions on harassment are gag orders isn't going to get over that.
31 to 27. To 30, something like that will be Columbia's argument here, but it's an odd one in the university settling. So, you, as an accused, can go through the entire process that's set up for determining your guilt, prevail at every level, and then be harassed out of the university by someone who is getting course credit for doing so, just because your "not responsible" ruling isn't the same as an "affirmatively innocent" ruling on a preponderance of the evidence standard?
11
"The New York Times article suggested that [Josie withdrawing from the appeal] was because she had already graduated and was unable to participate, but in fact, Josie had already graduated at the time of the first hearing."
I'm not saying that the university necessarily has a responsibility to protect his reputation -- I'm not arguing for a gag order -- but that doesn't mean that they should get a free pass for being complicit in wrecking it.
This would have to be a restriction not on her direct interactions with him, but on her statements about him. You can call it harassment, but it's the kind of harassment that doesn't require her to ever be in his presence, interacting with his property or possessions, or directing communications to him directly. I can't see a better way to describe it than gag order.
37 -- Well, first of all, Columbia's official policy does seem to have been to require confidentiality -- they just weren't enforcing it.
But, I agree with Carp here. There's a big difference (in a college residential context) between forbidding someone to speak about the rape at all and forbidding someone to engage in a large-scale campaign, for course credit and with apparent university support, to force another student off campus. That line may be hard to draw precisely but wherever it is the mattress project (particularly combined with her other efforts as described here) seems like it's well over on the other side of it.
being complicit in wrecking it.
As far as I can tell, their 'complicity' has literally no effect on the situation. She could have done exactly the same thing without getting course credit for it. If the course credit is the only hook that makes this Columbia University's problem, then this is a freak case that doesn't generalize to anything. But if this issue is that they're responsible for keeping one student from 'harassing' another by making it publicly known that she says he raped her, that's a big issue.
37 No, no no. She can say anything she wants. She can carry any piece of furniture anywhere she wants, on or off campus.
But she can't get university credit for it.
Not a gag.
40: Same answer for a short story with pseudonyms for credit, and she's vocal about her accusations outside of class? Again, I'm pretty clear that the art project didn't use his name.
But, to LB's point, maybe the University does have an obligation to prevent (people who have been through their process and found not responsible, not everyone in the world) from being consistently and publicly accused of being a rapist. It's not a general free speech zone, it's a (in this case private) university with a responsibility to all of its students.
Think about a less controversial case -- a student gets accused of plagiarism, the university finds him not responsible for plagiarism and clears him of the accusation, another student launches a public campaign accusing the guy of being a plagiarist and a fraud, which hurts his job prospects, grad school applications, reputation, etc. The university has no obligation to act to protect the wrongly accused student, because doing so would be a "gag order"?
Aside from the credit, whether an anti-harassment policy is a gag is going to end up getting adjudicated on the facts. In this case, for reasons in 38, I think they could have told her to stop engaging in the public campaign of harassment. I don't think the university violated a duty to him in failing to do that.
Sulkowicz's annotated some of the same FB conversations in this Jezebel piece from February.
42 -- OK, you've convinced me on the preclusion point, so in your example, the non-plagiarist would have to bring his own complaint against the accuser, seeking an order giving the accuser the choice between shutting up and being expelled, in which the non-plagiarist would have the burden of showing falsity.
41 -- A short story isn't usually performance art. That really is a difference here. I can construct a situation where it is performance art, with the specific goal of driving the perp off campus, and then we have a decent analogy and, I'd say, the same result.
35
'Josie says that by the time the second disciplinary hearing rolled around, she was just starting a new job and didn't feel she had the leverage to take a day off work to attend a disciplinary hearing at her old college. "What was I going to tell my employer?" she says, "'Hi, you guys just hired me a week ago and I have to go deal with this sexual assault case at Columbia... ' I just wanted to put it behind me." Nungesser was cleared because there was nobody there to argue Josie's case.'
Also, Josie offered to talk to Cathy Young via Updog.
Seriously? In the midst of this uber-fraught discussion, she goes with a lame joke? I'm not comfortable saying anything about his or her guilt or innocence, but I'd run screaming from either of these people.
For some reason the fact that a 22-year-old alleged sexual assault victim has the sense of humor of a 22-year-old didn't diminish her credibility in my eyes. Neither did the fact that someone who had expressed zero interest in going public basically blew off a reporter.
On the other hand, the tables were turned when Young followed up by asking Josie to confirm that she had once written an email with the following sentence:
"Friendly PSA: you can usually leave a little note on the door with your signature on it and they'll leave it in the vestibule. People are usually pretty good about bringing in packages if they're sitting there, so unless you're waiting for a golden dildo or something equally expensive (?) it's usually worth it."
Uber-fraught discussion indeed.
You'll note that I was quite specific about refraining from judgement either way. They both just sound like people I'd prefer never to have met, even when I enjoyed meeting 22 year olds with 22-year-old senses of humor.
Well, yes, it sounds like you have the privilege of exercising the highest standards of social exclusivity. I'm not even sure who "they" are in your sentence.
44 -- I couldn't read all that, but I scrolled down to the part where she annotates the Facebook messages and the annotations were .. not persuasive. I mean who what happened or how people interact in that kind of situation and I certainly wouldn't call the messages absolutely exculpatory on their own but she certainly didn't actually seem to have evidence of rape.
And frankly the Jezebel article, which I only skimmed, really was on a way OTT witch hunt. If the guy was falsely accused, which at least seems reasonably possible, the whole thing is pretty unbelievably awful (obviously awful if she was raped, too).
And frankly the Jezebel article, which I only skimmed, really was on a way OTT witch hunt.
Inconceivable!
I think I'm just going to babble for while because it's late and I'm in pain and can't sleep (or make sense, probably) but I'm thinking about how many roles I've played in this sort of story. I contend I was raped as a college student and eventually reported the first instance, but by the time I did the perpetrator had left the school, so there's some folder in the public safety office where the investigating officers say that my allegation sounded credible but that the only witness claims not to remember anything out of the ordinary about the night in question. No judicial inquiry because neither of us were enrolled when I made my allegations, but then a few years later I got course credit for composing something that included coded references to my rape, though the only person in the audience who would have known which details were mine was someone who knew my story because she went to the rape support group I ran. I got through and got over some of what I was dealing with by writing and through activism as a peer educator, by being a survivor's representative during a judicial hearing, all sorts of thinge that were predicated on my story being true. All of that is all right, right?
But I've also been involved in the aftermath of allegations someone else made that were false, which showed me how hard it is for a college system to deal with false allegations, especially if most of the professionals involved are bound by confidentiality agreements not to be able to share the facts they know even if the story circulating publicly doesn't match. There is a real problem here and I'm not convinced universities have gotten much better at dealing with it in the last 15 years.
And there's more I could say, but I won't yet.
Oh god reading just half of that complaint made me me feel glad for the first time ever that I'm old and went to one of the most uptight colleges in the country and was closeted and scared of sex.
I had a reaction much like 56, although my college experience wasn't quite that sexually repressed. This whole subject is so depressing.
I mean, I get that there's an interesting legal question here that's not inherently tied to the fact that this particular case is about rape, but gah. Still depressing.
19: It can't be right that saying someone who has been acquitted of a crime did, in fact, commit that crime is per se defamation. OJ was acquitted. Nicole's family then successfully sued.
I think that your argument that losing a complaint that was held to a "preponderance of the evidence" standard could more reasonably be construed as defamation, per se.
One of the odder things, to me as an old person, is the extent to which these relationships now get negotiated through (incredibly embarassing, poorly written) written-down prose. Hard to imagine a case like this 30 years ago with a big store of documentary evidence, but now there is one. I wonder if it makes a difference to have your fumbling, awkward stupid sexual exploration done largely through writing -- it might increase the sense of the relationship as a confusing contract with constantly renegotiated rules and boundaries, which seems to be part of what was going on here (I'm thinking of the odd dialogue with this guy about her ex and their relationship and what looks like a bramble bush of FWB relationships). None if that has anything much to do with rape but it sure seems confusing as fuck.
12: It's kinda Swiftian when you step back and look at the big picture
He should try to get course credit.
40: But she can't get university credit for it.
Doesn't that impinge unduly on her professor's academic freedom? And even if it doesn't, how do you enforce such a ban in the absence of the underlying issue becoming a matter of public debate?
Also, with this whole discussion, do we have to maintain the fig leaf that university officials are concerned at all with fairness and justice? That doesn't jibe very well with my experience of various interactions with academic bureaucracy. Mostly they're just concerned with protecting their positions and not upsetting the herd.
that she's responded to that specific allegation by saying that the quoted language was a hyperbolic reference to having had a bad day, as in the Heathers line "Fuck me gently with a chainsaw,"
An exec* where I work surprised me once by using the aside "bugger me gently" in front of a crowd of several hundred of his underlings.
*He hails from Down Under. A guy I quite like in part because his language slips provide some cover for mine.
One of the odder things, to me as an old person, is the extent to which these relationships now
To say nothing of how they look to someone 20 years older still; it's changed my sense of myself as a sexual being. Where once I felt like an underachiever in the Sexual Revolution, I seem to have become a surviving witness to a Golden Age.
One of the odder things, to me as an old person, is the extent to which these relationships now get negotiated through (incredibly embarassing, poorly written) written-down prose.
In college, my friend had some love poems from a former love interest, which we mercilessly eviscerated and simultaneously came up with the rule "Never write anything down" (in love&war). The 90s were a simpler time.
My first week of law school I met many people (obvs!) but two stood out for projecting "stay away from this person!" klaxon vibes. Sure enough within a couple of years the two of them managed to have a spectacularly ill-advised sexual encounter. I hope by now both their lives have recovered from the unedifying and depressing aftermath.
That sounds like something got cut off someone.
Interesting generational divide on written vs. spoken communication on these things. I, of course, find it totally natural to use written communication, and the idea of doing all this purely verbally sounds (even more) excruciatingly awkward. But then I'm just more comfortable with written communication overall.
I'm more comfortable with written communication - I'll always text or email over a horrible phone call or voicemail - but damn I'm glad I had a private journal and not a LiveJournal account for my teens and twenties.
Eh, it's not like anyone actually goes back and reads this stuff years later (in the absence of exceptional circumstances like with this Columbia stuff). In practice it's pretty ephemeral, though not quite as ephemeral as in the past. I think it's mostly just a generational shift in communication methods that hasn't affected people's subjective experience that much.
This instantly struck me as worthy of an Unfogged thread: http://www.bbc.com/news/magazine-32544343
Not trying to derail this thread (she said cringeingly), just bringing it to the attention of the powers that be.
75 Just confirms the general awesomeness of Tippi Hedren.
Huh, I had no idea.
Forty years after the fall of Saigon, 51% of nail technicians in the United States - and approximately 80% in California - are of Vietnamese descent.
I don't see why those two other claims even keep getting mentioned. I don't see anything approaching relevance. One woman said she felt like he wouldn't keep dating her if he wouldn't have sex with her and the other said he grabbed her butt and tried to kiss her.
Neither one of those things add anything of value to this issue.