On April 18, 2013, our daughter, Emma Sulkowicz, CC ’15, reported that she was raped by a fellow student to the Office of Gender-Based and Sexual Misconduct.
What followed was a prolonged, degrading, and ultimately fruitless process. It was an injury to her humanity from what was once, for her, a trusted institution. The trauma of this process has contributed to the rerouting of her life, her identity, and the form of her self-expression as an artist.
Emma’s performance piece, “Carry That Weight,” has galvanized forces around the world for gender equality, sexual assault policy reform, and empowerment of the disenfranchised, and has received praise from the art world. Needless to say, we are proud.
However, as Emma’s parents, we do not want her recent celebrity to be a distraction from the fact that the University’s failure to place sanctions on the man she reported for rape, Jean-Paul Nungesser, CC ’15 (whose name has previously been published by Spectator), is a cause of her continued suffering. The investigation, hearing, and appeals process that followed her complaint to the University were painfully mishandled. We feel that they violated standards of impartiality, fairness, and serious attention to the facts of the case.
When we wrote to University President Lee Bollinger on Nov. 18, 2013, we assumed that alerting him to the facts of the case, the existence of procedural errors, and the failure to abide by University policy in the scheduling and administration of the hearing would engender his concern.
We also assumed that the violent and serial nature of the claims being adjudicated would make the case one that necessitated careful oversight.
We received no reply from President Bollinger, and our daughter’s request for an appeal was subsequently denied by Columbia College Dean James Valentini. We were left with the impression of a University intent on sweeping the issue of campus rape under the rug.
In retrospect, it’s hard to see the conduct of the investigation of our daughter’s complaint and the subsequent hearing as anything but a circus. Emma complied with the administrator’s recommendation that she not engage a lawyer for outside advice, and was advised solely by Rosalie Siler, then-assistant director of Student Services for Gender-Based and Sexual Misconduct. But Ms. Siler did not effectively present our daughter’s case to the panel, and the deck was stacked against Emma. Here are some of the most telling instances during the process:
1) During the hearing, Nungesser, advised by his outside attorney, lied in order to cast doubt upon Emma’s character and present an alternative and perverse motivation for her complaint. Our daughter was instructed by Ms. Siler not to answer these allegations in any way, and not even to inform the panel that he was lying. He repeatedly stated that there was an online video that he was not allowed to show the panelists, but wished he could, because it “proved that she had an irrational fear of immobilization,” which would lead her to imagine or lie about being raped even if the experience was actually consensual. Emma begged Ms. Siler to allow her to expose the lie by explaining the video’s content to the panelists, but was refused. In the video, which was an interview posted as part of a women’s issues project, Emma, then 18 and a fencer on Columbia’s varsity team, talked only about a fencing injury and her drive to do extra strength training after her recovery because of her fear of being weak. The “immobilization” was a walking cast she’d had to wear on her foot. The online project is still readily viewable, and the boldness of the lie can be easily verified.
2) Emma was not allowed to explain, in her own words, the timing of her reporting. Emma tried to explain that, after meeting two women who told her they too had been raped by Nungesser (only one of whom filed a complaint), she realized that she should overcome personal shame and report him to ensure the safety of others. Ms. Siler told her to stop talking and pulled her from the room. To the panelists, the timing of Emma’s decision to report that she was raped—seven months after she said it had occurred—remained a mystery. The reason for her conflict with Ms. Siler could only be fodder for their speculation.
3) The fact that Nungesser had previously been found “responsible” by a Columbia panel for following another Columbia student to her room, shoving his way in, forcefully pinning, and groping her was not allowed as evidence in Emma’s hearing. Just days before her hearing, Dean Valentini granted an appeal of this verdict, which re-opened the case and consequently disallowed it as evidence. This effectively hamstrung Emma’s case. (An aside: The final hearing for this other case was scheduled and held at a time the complainant had specified that she was not available to testify. Without her presence, the original panel’s “responsible” verdict was easily overturned.)
4) Because of the accommodation of multiple postponement requests by Nungesser, Emma’s hearing did not take place for six and a half months. This included allowing him to be unavailable for an entire summer vacation. Not only were these delays cruel to our daughter and our family, they were contrary to the 60-day recommended timeframe imposed by Columbia’s (and federal) policy.
5) Dean Valentini responded to Emma’s request for an appeal by taking the unusual step of “re-convening” the same panel that had returned the “not responsible” decision, and discussing the case with them to inform his decision. This did not constitute a fair, independent, and unbiased look at the proceedings, and it is not the way an appeal should be either granted or denied.
6) Emma’s request that the investigative report presented to the panelists be cleared of errors and presented in clear narrative form was denied. Due to the carelessness of the investigator’s note-taking, the incoherent report—full of confusing errata and addenda—contained factual errors as well, such as the length of time that Emma said Nungesser lay next to her after the incident (seconds, not “minutes”). There is no doubt that the denial of this request actively hurt her case.
Columbia is now at the center of a national discussion on the performance of our society in preventing and adjudicating sexual assault, and protecting the rights of survivors.
Although Emma filed a criminal report with the NYPD against Nungesser, she has learned from the district attorney’s office that pursuit of criminal charges would result in another prolonged investigation and adjudication that would not be resolved during the remainder of her time at Columbia University. Thus, over two years after the incident, Emma remains dependent on the University to determine whether Nungesser remains on campus.
We feel that the board and the president have the opportunity to modify the course of events in keeping with what they deem best for the University and for our daughter given their right to exercise oversight over the administration of the University as a whole. As other avenues have failed, we wish that the president and the board would act as a higher court of appeals, and allow Emma a properly conducted retrial in which she has the right to an advocate, unfettered by conflict of interest, who will prosecute her case on her behalf; the right to present the best case possible; the right to present her motivations truthfully; the right to cross-examine; the right to answer unfounded allegations about her character; and the ability to demonstrate a pattern of behavior on the part of the accused party.
At the very least, we recommend that Nungesser be expelled for lying at his hearing. Truthfulness is an absolute requirement for any system of justice to operate. Allowing Nungesser to lie with impunity makes a mockery of all such proceedings, and violates the spirit of the University itself.
Meanwhile, Columbia’s policies remain problematic and affect other students.
The policy that disallowed the fact of multiple allegations against the accused as evidence in Emma’s hearing still remains. Columbia’s policy states that respondents must have been found responsible by a panel before an additional allegation of similar behavior can be used as evidence. This is a stricter filtering of evidence than even exists in many courts of law. Evidence for a pattern of behavior is crucial to the adjudication of some crimes—such as rape—and is recognized by most legal systems. If several victims’ voices together cannot be deemed stronger than a single victim’s voice, the system is deaf.
In this light, Columbia’s policies seem to be overly concerned with litigious reprisal by displeased respondents. This misguided policy supports unexamined prejudices and discrimination against women.
It also deprives those who are guilty the chance to learn and reform their behavior, and does them no good service. (We feel that expulsion for a crime at a young age is a much milder and potentially more instructive punishment than incarceration at a later age.)
We find it necessary to remind the University that rape is not merely an assault on the body, but an assault on the mind, and in particular, the will. Those who have withstood the violence of rape are often injured in their ability to assert themselves and to trust that they will be treated with humanity when they attempt to be heard. It is inhumane and unrealistic to expect that every survivor of sexual assault who can bear reliable witness will also have the strength, determination, and support that are currently required to lodge, and see to its conclusion, a formal complaint.
It is clear that Columbia’s misunderstanding of the psychology of sexual assault survivors has contributed to abysmal rates of reporting, with even lower rates of those who continue to an investigation.
If Columbia remains passive in the face of Emma’s suffering, and does not attempt to rectify the injustice done to her, survivors at Columbia will feel discouraged from entrusting themselves to the system that Columbia has recently worked so hard at putting into place.
In a few months, Emma and Paul will graduate. If Columbia does not act to expel him before then, their graduation will not relieve Columbia of the burden of this episode. Instead, in this important moment in the history of sexual assault on college campuses, Columbia will remain indelibly in the public mind as the university where good men and women did nothing.
The authors, Sandra Leong, M.D. and Kerry J. Sulkowicz, M.D., are the parents of Emma Sulkowicz, CC ’15.
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