NOTE: The article excerpted on this page is from an outside publication and is posted on FIRE's website because it references FIRE's work. The viewpoints expressed in this article do not necessarily represent FIRE's positions.

Newsweek Highlights the ‘Other Side’ of Campus Sexual Assault Debate

December 10, 2015

By Ashe Schow at The Washington Examiner

Newsweek has generally provided positive coverage for those insisting campus sexual assault is rampant at American colleges and universities. They’ve written uncritically about severely flawed studies alleging that one in three men would rape if they could get away with it (debunked here) and one in four or five womenallegedly being sexually assaulted while in college (debunked here).

But on Thursday, the magazine published an article that tells the other side of the campus sexual assault debate — the side where accused men (and a couple of women) have no due process rights and are branded as rapists without being able to properly defend themselves.

Newsweek’s Max Kutner told the story of Paul Nungesser, who was accused of raping mattress-toter Emma Sulkowicz and of other sexual misconduct by some of her friends. In each instance, Nungesser was cleared of wrongdoing (including one accusation that was less plausible than Sulkowicz’s). He was even interviewed by police in relation to Sulkowicz’s accusation, but the investigation went no further.

Nungesser — who is today a free and innocent man in the eyes of the law and his former university — has nonetheless been branded a rapist by Sulkowicz and those in the media who promoted her performance art project, whereby she carried a mattress around for months to try and get the man she accused off campus.

Newsweek spoke with Nungesser’s parents about attending his Columbia University graduation knowing the school had been praising his accuser.

“It was like a slap in the face,” his father, Andreas Probosch, said of the keynote speaker’s address to students to keep being activists. The speaker specifically mentioned Sulkowicz’s mattress project. Probosch said he had worried he and Nungesser’s mother would be recognized and wondered if other students and parents would “spit in front” of them.

Nungesser’s mother Karin said she wanted to go up to the other parents and tell them: “I am the mother of Paul, and I am very proud of my son, and I hope you discuss with your sons and daughters what they did to him.”

Nungesser had filed a lawsuit against Columbia for its promotion and acceptance of Sulkowicz’s mattress project even though he was innocent. He amended the lawsuit in July to include Columbia’s disregard for its stated rules that no large objects could be carried on stage, yet the school didn’t stop Sulkowicz and four of her friends from carrying her mattress across the stage at graduation.

Nungesser told Newsweek that Sulkowicz’s accusation that he punched her, choked her and held her down while she screamed was “a huge shock, and a whole world for me broke apart.”

After Nungesser’s name was printed in the school newspaper and he became nationally known and branded a rapist in the court of public opinion, his parents began emailing school administrators.

“We have just learned that our son was ambushed outside his residence by two reporters,” said one email.

“Do we have to wait until Paul is beaten up, severely wounded or even killed?” said another.

“We just talked to Paul on the phone and found him devastated, depressed and without any support” they wrote in another.

“We feel that his well-being is seriously in danger,” another email said.

“You are again massively worsening our son’s situation” said yet another.

Columbia responded to these emails with boilerplate insistence that the school “takes these matters extremely seriously,” yet never did anything to protect one of its students.

After Sulkowicz launched her art project and became a media darling, Nungesser sent an email to Columbia administrators.

“I said, ‘There is someone apparently doing a school-sponsored project about getting me either bullied or expelled. This can’t be going on. You should be doing something about it. I’m not feeling safe. This is against school regulation.'” Nungesser said. “And I was just completely — yeah, ignored is not even strong enough” a word for how little the school seemed to care about his situation.” (Emphasis original.)

When Newsweek reached out to Sulkowicz for comment, she threatened to sue them for telling Nungesser’s side of the story (which is partially backed up by Facebook posts provided in his lawsuit).

“Paul Nungesser’s complaint is filled with lies,” Sulkowicz told Newsweek. “I want to warn you to be conscientious about what you publish as ‘fact’ for I may work with a lawyer to rectify any inaccuracies and misrepresentations.”

Why she hasn’t done so already in the time since Nungesser first told his side of the story, is a mystery.

Newsweek also tells the story of several other men who have been accused but who paint a much different picture of what occurred during the alleged rape. For one accused student, S. Tim Yusuf, the accusation against him in 1992 paved the way for a landmark court case cited by many accused students now.

Yusuf had been accused of sexual harassment, but was able to provide evidence that he wasn’t anywhere near his accuser at the time of the alleged incident. The school didn’t allow him to submit that evidence and suspended him for one semester. Twenty years later, and schools are still refusing accused students the ability to provide evidence in their defense, or if it is allowed, that evidence is then twisted as evidence of wrongdoing.

Newsweek also spoke to the Foundation for Individual Rights in Education’s Samantha Harris, who suggested that previously, women who made sexual assault accusations were not taken seriously, but that now, “a growing number of people are starting to be concerned that the pendulum has swung too far in the other direction.”

Brett Sokolow, who works with two groups that consult with schools on how to adjudicate Title IX (the anti-gender discrimination law) accusations, also criticized the Education Department, which forced schools to adjudicate sexual assault by way of disciplinary hearings by way of a “Dear Colleague” letter.

“I think probably a lot of colleges translated the ‘Dear Colleague’ letter as ‘favor the victim,'” Sokolow said. “We very quietly started to say to our clients. … Don’t overcorrect on this because it will touch off a spate of litigation by accused individuals.”

Sokolow also said that men bringing lawsuits against their universities haven’t been successful in the courtroom in recent years, due in part to schools settling out of court so that the cases don’t create legal precedents.

“I don’t think a Title IX lawsuit against a college or university by anybody is going to go to trial because higher ed won’t let it, because the attorneys and the insurance companies will settle these cases to make sure that that precedent is never set,” Sokolow said. “You’re going to have to find a plaintiff, whether they’re an accused student or a victim, who refuses a settlement, no matter what it is, and insists on their day in court, which is a very expensive thing to do.”

Newsweek also points out that at least 90 male students have filed lawsuits against their schools after being accused of sexual assault. Many of the claims include breach of contract and the denial of due process, but many now are also including claims of bias against men.

Nungesser’s lawyer, Andrew Miltenberg, told Newsweek that eventually the tide may turn for accused male students.

“The courts are going to have to see enough of these that there is a sense across the country that, ‘Wait, this is coming up too much, there really must be something wrong.'”

This issue will have to be settled in courts, as it appears campus administrators are not open to the suggestion that men are being wrongly punished. At an October seminar for Title IX administrators, one lawyer who has defended accused students suggested that it is unfair to punish only one drunk student for sexual misconduct, because both drunk students are “frankly raping each other.” The audience, according to Newsweek, “bristled” and two other lawyers had to calm them down.

The lawyer who made the comment, Justin Dillon, was not surprised by the reaction, and said that schools are too afraid now to suggest that an accusing student simply regretted an encounter and wasn’t, in fact, sexually assaulted.

Newsweek continues to tout highly questionable studies on this topic, showing, for example, that 20 percent or 25 percent of women being sexually assaulted in college, without even suggesting those studies are controversial. Still, the magazine did something good by addressing this issue, although I suspect this is the last we will hear of it within its pages.

Schools: Columbia University