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Blog and Media Roundup - Thursday, December 10, 2015; News Roundup
Topic Started: Dec 10 2015, 05:27 AM (233 Views)
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http://www.cotwa.info/2015/12/senator-gillibrand-and-i-finally-agree.html


Wednesday, December 9, 2015
Senator Gillibrand and I Finally Agree on Something
In an Associated Press release entitled, "Senators demand military justice transparency," Senators Kirsten Gillibrand, Barbara Boxer, and Mazie Hirono have called on Secretary of Defense Ashton Carter to implement a PACER type system where the public can log on and search filed court-martial documents.

As an attorney who has represented Servicemembers falsely accused of rape, I highly support these Senators' efforts to make the UCMJ more transparent by requiring the DoD to implement a system similar to PACER in the Federal court system. Such measure could be used to show the real invisible war and expose some of the most outlandish trials that never should have seen the inside of a courtroom. Based on their past official actions, Senators McCaskill and Gillibrand have senior Officers so afraid of either (1) not being promoted if the Convening Authority dismisses a case, or (2) that control over the UCMJ will be wrested from the discretion of Commanders, that pretty much every case makes it to Court-martial at a pretty significant expense to taxpayers, unit morale, the mental health of the falsely accused, and the mental health of the complaining witness.

The public is probably unaware of some of the most ridiculous cases brought to Court-martial because Rules for Courts-martial do not require that a verbatim transcript be typed by the court reporter for full acquittals or convictions with small sentences. When implemented, this military PACER type system should have the audio, redacted for closed sessions of the Court-martial, readily retrievable in an accessible area, so that the general public can listen to the injustices that occur when a clearly innocent man is prosecuted for a crime he did not commit based on the political pressure exerted by these Senators. Right now, the only way an Accused can obtain the audio is through a FOIA request because no audio or verbatim transcript is not made a part of the record of trial for acquittals.

Once the curtain is pulled back and the public can see what actually goes on in some of the cases, then perhaps Congress will reinstate the protections to the accused that were negated by this latest regime of victim advocates in the US Senate. For instance, every member of the Armed services was forced to watch "The Invisible War," a biased "documentary" that was filmed and directed by two victim advocates, Kirby Dick and Amy Zierning. One of the stars of this movie is female Marine Ariana Klay who has been by Senator Gillibrand's side at a few press conferences regarding military sexual assault. You can read the transcripts from the testimony of her accused rapist's Court-martial at his attorney's website here and decide for yourself whether she is credible.

You can read the transcript from "The Invisible War" here. Notice how the directors do not show Klay's discussions, if any, about the Court-martial in which she testified. Her description of her "assault" are mainly in the section where the film focuses on Commanders sweeping sexual assault under the carpet. Only in the end, is the viewer informed that the Marine she accused of rape was convicted of adultery and indecent language. They leave out that he was actually tried and acquitted of rape, which makes it appear like he was only charged for cheating and cursing.

Had a military PACER type system been in place at the time Servicemembers were forced to watch "The Invisible War," then the press could have logged into the Court-martial docket system and viewed transcripts, heard audio, or read documents filed by defense and government attorneys to see for themselves just how disingenuous this film was since Klay's allegations did make it to a Court-martial where her alleged rapist was tried and acquitted of rape.

It's no surprise that "The Hunting Ground" has strived to manufacture a college rape crisis; it's directors previously maligned the military in the same fashion. Hopefully, more transparency in the military justice system will help reduce the number of Servicemembers who are wrongly accused. Perhaps, they should also require universities to post disciplinary hearings online, as well, to ensure transparency in our colleges and universities.
Posted by barney greenwald at 1:41 PM
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http://www.huffingtonpost.com/entry/fraternity-lobbying-campus-rape_566062bae4b08e945fee3f79?utm_hp_ref=education&ir=Education&section=education

The Inside Story Of The Controversial Fraternity Lobbying Effort On Campus Rape

Internal documents reveal how Rolling Stone's retracted campus rape story led to a hotly debated sexual assault bill.

Tyler Kingkade
Senior Editor/Reporter, The Huffington Post

12/10/2015 05:06 am ET

The path toward a fraternity-led lobbying effort in support of controversial campus rape legislation started with Rolling Stone.

In December 2014, one day after serious questions began to circulate about an explosive Rolling Stone story concerning an alleged gang rape at the University of Virginia's Phi Kappa Psi chapter, a group of fraternities mobilized to start lobbying around the issue of college sexual assault, according to documents recently obtained by The Huffington Post.

That lobbying would eventually pit major Greek life organizations like the National Panhellenic Conference and the North American Interfraternity Conference (NIC), two umbrella groups for national fraternities and sororities, against advocacy groups for rape victims. It would create some very public disagreements among higher education officials, fraternity and sorority executives and even U.S. senators. And all of it might have been avoided, had NPC and the NIC paid attention to the signals that there were sharp divisions within their own ranks about their legislative agenda.

Some of the same critics of the lobbying effort are now taking a more optimistic tone, saying privately that they hope recent reforms and an overhaul in the NIC's board of directors will push the fraternity group in a more productive direction. But fraternity and sorority advisers on campuses are still looking for answers about how NPC and the NIC got involved in a messy year of lobbying.

At the outset, it appeared that Greek life organizations were united in wanting to end system-wide suspensions of fraternities and sororities on campuses -- like the one UVA imposed after the Rolling Stone article, and other suspensions in fall 2014 at schools like Johns Hopkins, Emory and Clemson University.

Such system-wide suspensions had happened in previous years, but higher education officials viewed the 2014-15 academic year as a period of increasingly aggressive responses on the part of schools. A white paper prepared in November by NIC members, obtained by HuffPost, noted that these "knee-jerk" suspensions were one of fraternity executives' top concerns.

On Dec. 6, 2014, immediately after the Rolling Stone article began to unravel, the fraternities Alpha Tau Omega, Phi Kappa Psi, Kappa Alpha Order and Sigma Nu approached Kevin O'Neill, the executive director of FratPAC and the go-to lobbyist for Greek organizations. The fraternities wanted to speak to O'Neill about setting in motion a legislative effort concerning sexual assault. O'Neill drafted a proposal, obtained by The Huffington Post, and in January 2015 recruited NPC and the NIC to join the coming lobbying effort, which was expected to cost about $300,000 over 12 months.

The agenda was crafted after "collaborative conversations" with Squire Patton Boggs, O'Neill's firm at the time, said FratPAC, KA, Sigma Nu and ATO in a statement. "Through Mr. O'Neill and Squire Patton Boggs' guidance and expertise," the groups said, "our organizations were able to have a voice in this conversation."

NPC and the NIC forged ahead with a lobbying effort in favor of several controversial campus rape proposals without first obtaining support from its member organizations. The decision to back the lobbying effort was made by each group's board of directors, NIC and NPC executives have confirmed.

By January, the budding coalition of fraternity groups had agreed on a handful of agenda items, including:

The preservation of the Title IX single-sex exemption for fraternities and sororities;
requiring the criminal justice system to handle crimes of sexual assault that occur on campus or involve students;
"deferral of any campus judicial proceeding until completion of criminal adjudication (investigation and trial)";
"constrain[ing] the inappropriate use of system-wide suspensions";
allowing universities to decide their own standard of evidence to determine guilt in sexual assault cases.

Lobbyists hired by the fraternity and sorority groups suggested taking steps to expand beyond Congress, including the development of "a model bill for introduction in state legislatures," according to a strategy brief prepared for NPC and obtained by HuffPost. They recruited former Senate Majority Leader Trent Lott (R-Miss.), himself a Sigma Nu member, to work with them. Phi Psi dropped out of the lobbying effort, but declined to say why for this story.

In a brief statement this week, interim Phi Psi chief Blake Yeaman said he has "faith" in the new NIC leadership and their ability to "have an open dialogue with any legislation to find common ground and materially improve the safety of all students on any campus."

In the strategy brief, the lobbyists wrote about how to deal with a potential media backlash: "We understand that the public relations aspect of this situation is a serious problem, especially for fraternities. We would work closely with your public relations team to explain the legal and policy positions needed to educate various constituencies about your rights. We favor a more aggressive outreach than the fraternity system has shown to date."

In March, text of the legislative agenda leaked, sparking an immediate backlash from higher education officials, U.S. senators and rape victims' advocacy groups. The fraternity groups backed away from the agenda during the student lobbying, but said in April that they expected to "actively endorse such proposals later in the year."

When the legislative agenda leaked, executives involved in the fraternity lobbying effort disregarded multiple warnings, in person and in public statements, that the higher education world and rape victims' advocates did not support their proposals, according to people familiar with the discussions.

Top leaders from the Association of Fraternity/Sorority Advisors (AFA) said multiple times in private meetings with fraternity leaders over a period of several months that they found "unconscionable" the idea of blocking colleges from responding to student sexual assault reports. The fact that NPC and the NIC were plowing ahead with a legislative agenda advocating as much in a lobbying effort was "scary," AFA Executive Director Mark Koepsell remarked to colleagues in March, after the groups' lobbying agenda leaked.

The NIC membership did vote in April on a motion that would have given fraternities across the country more of a say in the NIC's legislative positions -- but that motion failed.

NPC confirmed that spring 2015 was when "key components of the legislation were coming together." Indeed, while those Greek life students roamed Capitol Hill, the "Safe Campus Coalition" filed its first congressional lobbying report on April 27.

Things went quiet until July 29, when the Safe Campus Act and Fair Campus Act were introduced in the House, and the NIC had plenty of materials ready to promote the bills.

Rape victims' advocates and campus safety groups objected to the Safe Campus Act because it would prohibit colleges from investigating reports of sexual assault unless the accuser also went to the police. Sexual violence would be the only form of misconduct subject to this requirement, meaning that colleges could still punish other illegal behavior like physical assault or theft.

O'Neill and other executives involved in the lobbying effort responded to the criticism from people working in higher education by noting that they'd worked with a victims' rights group prior to endorsing the bill. But to date, no such group has declared its public support for the Safe Campus Act. On the other hand, hundreds have stated their opposition to it.

Staff from the Rape, Abuse & Incest National Network met with NPC, reviewed their bill and declined to support it. Officials from the American Association of University Women made it known privately that they disagreed with NPC's legislative agenda. After the Safe Campus Act was introduced, AAUW publicly criticized its provisions in a congressional hearing.

On several occasions this year, fraternity executives and lobbyists have cited a February 2015 poll showing that Americans favor law enforcement taking a primary role in campus rape cases -- and pointed out that the poll was commissioned by a leading victims' rights group. That group turned out to be RAINN, which at the time was trying to bolster support in the Senate for the Campus Accountability & Safety Act, a separate bill that does have endorsements from rape victims' advocates.

In October, as reports that the Safe Campus Coalition had formed and hired Lott to lobby in favor of their position on campus rape, NPC and the NIC began to receive criticism from Sens. Claire McCaskill (D-Mo.) and Kirsten Gillibrand (D-N.Y.). On Nov. 12, several sororities began to publicly distance themselves from the Safe Campus Act, prompting NPC, the NIC, Sigma Nu, ATO and KA to yank their support as well.

"The McCaskill-Gillibrand reaction to the NIC/NPC proposals made it fairly clear to people it would not be enough that everything should be handled by the criminal justice system," said Peter Lake, director of the Center for Higher Education Law and Policy at Stetson University. "There's a substantial group in Congress that will oppose something that is only focusing on external law enforcement."

Both NPC and the NIC have replaced their CEOs since the bill's introduction. NIC's board of directors is almost entirely different as well.

Moving forward, said interim NIC boss Jud Horras, "the conference is firmly committed to an open, transparent, and collaborative approach with our members, higher education partners, and all stakeholders in present and future legislative initiatives."

NPC and the NIC have since revised their legislative agenda to more closely align with the Fair Campus Act. The Fair Campus Act is similar to the Safe Campus Act, but does not prohibit colleges from investigating sexual assaults. The Fair Campus Act would allow schools to use more strict standards of proof in deciding whether a student committed an offense, but the NIC is no longer lobbying for that component.

"Where I feel good is the conversation is finally actually happening," Koepsell told HuffPost. "People are at the table. I feel very good that they've pulled away from Safe altogether ... There are massive changes in representative leadership right now, and instead of just issuing statements on both sides, I hope now we can come together at the table."


Tyler Kingkade covers higher education and sexual violence, and is based in New York. You can reach him at tyler.kingkade@huffingtonpost.com, or find him on Twitter: @tylerkingkade.
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http://www.newsweek.com/2015/12/18/other-side-sexual-assault-crisis-403285.html

The Other Side of the Sexual Assault Crisis
By Max Kutner / December 10, 2015 5:33 AM EST

When you are the most notorious alleged college rapist in the country, it takes a lot of guts to attend your graduation ceremony.

For most of Columbia University’s Class of 2015, graduation day was an exuberant celebration of four years of hard work at one of the country’s most prestigious schools. For Paul Nungesser, it was yet another reminder of how alone he was on that storied campus, and how hated he was. He and his parents had agonized over whether to attend the ceremony because his classmate Emma Sulkowicz had accused him of raping her, and for more than eight months she had carried an extra-long twin-size mattress around campus, vowing to do so until he was expelled, or fled. Despite this very public shaming, Nungesser had stayed in school and earned his degree. But now he worried that people would boo him as he crossed the stage to claim his diploma, that reporters would hound him, that the image of him in his cap and gown would spread across the Internet. He also feared that Sulkowicz would lug that mattress onstage, even though Columbia had warned the seniors not to bring “large objects which could interfere with the proceedings or create discomfort to others.”

At the last minute, the family decided to attend. His parents flew in from Berlin, where they live and where Nungesser is from. His mother, Karin, recalls that on graduation day it was pouring rain “like it’s perhaps the last day of New York.” Despite the apocalyptic weather, a thousand students lined up in their blue caps and gowns, eager to take their prize. Nungesser wore a matching blue bow tie and khaki pants, while some of his classmates stuck red tape to their caps, part of a campus anti-sexual-violence organization called No Red Tape, co-founded by Sulkowicz.

As “Pomp and Circumstance March No. 1” played over the loudspeakers, the soon-to-be graduates filed from the student center to the campus green and took their seats on white folding chairs under giant tents. On the way in, Nungesser spotted Sulkowicz, carrying the mattress. He texted his parents about it but knew there was nothing they could do. So he sat nervously, awaiting his turn to cross the stage. At one point, the keynote speaker, Los Angeles Mayor Eric Garcetti, said, “You took risks. You’ve held contrary opinions, held die-ins and sit-ins and carried mattresses.... Never stop being activists.”

“It was like a slap in the face,” says Andreas Probosch, Nungesser’s father. (Karin Nungesser and Andreas have been together 25 years but are not married.)


After the speakers had all passed along their platitudes and homilies, administrators began calling students to the stage. Fortunately for Nungesser, when the announcer read his name, no one booed or protested. But eight minutes later, it was Sulkowicz’s turn. The announcer stumbled over her name, perhaps distracted by the giant mattress wrapped in a waterproof cover being lugged to the dais by Sulkowicz and four friends. A loud burst of applause drowned out the names of the next few classmates called after her.

Sitting among all the rain-soaked parents, Probosch remembers feeling relieved that nobody knew who he was. “I wondered...What would they do if they knew we were the parents of the guy Emma accused? What would they do? Would they spit in front of us?”

Karin, however, felt defiant. “I would have liked to go to every single parent in that audience and say, ‘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.’”

Sulkowicz’s final act of rebellion that day—and the fact that Columbia did not stop it—is now part of a lawsuit Nungesser has filed against his alma mater. Even though Columbia found him not responsible for what Sulkowicz alleged, his suit claims the school was complicit in her long-running effort to destroy his reputation and declined to intervene because he is male. Some people believe the claim is absurd. Others say it’s the wake-up call higher education needs to start protecting all students.

12_18_Nungesser_11 Paul Nungesser walks through Mauerpark in the Prenzlauer Berg neighborhood of Berlin on December 4. The fallout from the national press coverage of Sulkowicz's story has negatively impacted Nungesser's reputation, he says, making it difficult for him to find work. Mustafah Abdulaziz for Newsweek

‘Starting to Snowball’

Colleges have recently ramped up their investigation of sexual assault accusations because a 19-page letter told them to do so. In 2011, the U.S. Department of Education’s Office for Civil Rights issued a “Dear Colleague” letter. It clarified that sexual violence is a subset of sexual harassment, which in an education setting falls under Title IX of the Education Amendments. The OCR threatened to investigate schools thought to be insufficiently zealous with sexual assault cases, and if it found a school had violated Title IX, the OCR might rescind federal funding.

“We were seeing quite a bit of noncompliance and quite a bit of concern around the country,” says Catherine Lhamon, assistant secretary for civil rights at the Department of Education, who believes the “Dear Colleague” letter did its job. “I think we’ve seen just a cataclysmic change around the country in terms of attention to the issue, responsiveness to it, and training, preparation for our students so that we can see safer campuses,” she says. The OCR is investigating 152 colleges for their handling of sexual violence claims, and, she adds, complaints about sexual violence at colleges have increased more than 400 percent.

Victims’ advocates say the OCR letter helped destigmatize sexual assault and encourages survivors to report. But a less-told consequence is the tendency by schools to trample due process rights for the accused, according to some higher education and legal experts. “There was for a long time a perception that colleges were not responsive at all to claims of sexual misconduct,” says Samantha Harris, director of policy research at the Foundation for Individual Rights in Education. These days, however, “a growing number of people are starting to be concerned that the pendulum has swung too far in the other direction.”

“I think probably a lot of colleges translated the ‘Dear Colleague’ letter as ‘favor the victim,’” says Brett Sokolow, executive director of the Association of Title IX Administrators and president of the National Center for Higher Education Risk Management, which consults with schools. “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.”

The message, he adds, was “You went too far. Swing the pendulum back.” Sokolow says schools didn’t heed the warning and resented the suggestion. “[We] really took it on the chin. I mean, this was such an unpopular thing for us to say. And it does not feel good in any way, shape or form to have been absolutely right.”

Nungesser leads the swelling ranks of male students suing colleges, seeking damages and asking judges to force schools to clear their records. A database on the website of advocacy organization Boys and Men in Education says at least 90 men have filed such lawsuits in the past few years, and some lawyers say the total number is even higher. Until recently, the lawsuits focused on claims such as breach of contract and lack of due process. But increasingly, lawyers are throwing gender discrimination into the mix. Accused men are now echoing the complaints of their (most often) female accusers: that schools are violating Title IX, the federal law that prohibits sex-based discrimination in federally funded education programs.

At a time when a movement is finally growing to prevent campus sexual assault and support the survivors, the claim that schools are anti-male can sound as absurd as white people suing for racial discrimination. After all, new findings reaffirm the statistic that 1 in 4 or 5 college women is a victim of a sexual assault, and research published in the journal Violence Against Women says that only 2 to 10 percent of campus sexual assault accusations are false. But at least 14 so-called reverse Title IX cases are moving through the courts, and new ones are being filed every few weeks. All it takes is one victory in court to set a legal precedent and end what some higher education experts say is an overcorrection on sexual assault.

“Things are starting to snowball. There’s kind of a gathering storm of resistance,” says Jonathan Taylor, founder of Boys and Men in Education. Since 2011, accused students have sued too many schools to list.

At Vassar College, the daughter of a longtime professor had sex with her teammate on the rowing team. She later told him on Facebook that she had “had a wonderful time,” court documents say. A year later, though, she reported that she had not consented and that she had tried to resist and felt trapped. After an investigation and hearing, the school expelled him. He sued, but a judge dismissed the case.

At Brandeis University, a male student accused his ex-boyfriend of “numerous inappropriate, non-consensual sexual interactions” during their two-year relationship, according to the federal complaint. Those apparently included waking the accuser with a kiss in the morning (because the accuser was half-asleep, the school investigator said he was incapacitated) and seeing his then-boyfriend naked in the dorm shower. The accused was found responsible for sexual misconduct, and he’s suing.

A case against Washington and Lee University recently survived a motion to dismiss. According to the complaint, a female student started kissing a male student, led him to his bed and removed his clothes. They apparently performed oral sex on each other and then had intercourse. She spent the night, and in the morning they exchanged phone numbers, the complaint says, and a month later, they had sex again.

The next semester, the female student attended a presentation on sexual assault, during which the school’s Title IX coordinator allegedly spoke about how “regret equals rape.” (The school has denied this.) Soon after, the female student filed a complaint, and the coordinator from the presentation opened an investigation. That person allegedly omitted important details from the report, such as quoting the girl as saying, “I usually don’t have sex with someone I meet on the first night” and leaving out her caveat: “But you are a really interesting guy.” The school expelled him. He sued, and a jury trial is scheduled for April.

Lawsuit after lawsuit paints a picture of some accused college rapists that’s far different from the stereotype of the roofie-dropping frat boy or violent jock. “I’m not representing students who are being accused of violent gang rapes,” says Kimberly Lau, a lawyer who represented the accused Vassar student. “I’m talking about the gray area, the he-said, she-said, two people in a room, two people drinking...and coming away the next day with different narratives of what occurred.”

Nungesser’s case was a he-said, she-said, and its details are well-known by now. He and Sulkowicz were friends who had had sex on two occasions before they hooked up again in August 2012, on the first day of their sophomore year. They seemed to remain friendly afterward, but several months later, Sulkowicz filed a report with Columbia, claiming Nungesser had anally raped her that night in August during what had started as consensual sex. She also said he had slapped her, choked her and pinned her down and wouldn’t stop despite her screaming. “He could have strangled me to death,” she told The New York Times.

“That was obviously a huge shock, and a whole world for me broke apart,” Nungesser says of the accusation. He told the school the sex had been consensual. In November 2013, Columbia found that Nungesser was not responsible and denied Sulkowicz’s appeal.

Shortly after Sulkowicz filed her report, two more women came forward with accusations against Nungesser. One said he had groped her and tried to kiss her a year earlier; another said that when she dated Nungesser, she had felt pressured to have sex with him. Nungesser’s accusers have said they each decided to speak up when they learned of the others’ cases. Columbia exonerated Nungesser in all cases. (In one, the school initially found him responsible; after an appeal, a second hearing cleared him. A fourth accuser, a male student, later said Nungesser had sexually assaulted him; again, the school found him not responsible.) “This is the point where all of us say, Well, this is finished, OK,” says Karin, his mother. “Now everything can cool down.”

Or heat up. In December 2013, the New York Post ran a story about the first three claims, referring anonymously to a “jock ‘rapist’... still walking around like a big man on campus because the school dropped the ball.” In January 2014, a student publication detailed the claims against him, with pseudonyms for all involved. Then, in April 2014, Sulkowicz spoke at a press conference with New York Senator Kirsten Gillibrand. A press release quoted Sulkowicz as saying, “My rapist—a serial rapist—still remains on campus, even though three of the women he assaulted reported him.... Every day I live in fear of seeing him.”

A month later, Sulkowicz appeared on the front page of The New York Times and penned an article for Time about the alleged rape. Nungesser’s name soon appeared on fliers and graffiti around campus, along with the words “serial rapist.” Days later, Sulkowicz filed a police report. The district attorney decided not to bring charges, which, Nungesser’s lawyer at the time says, was because the office felt it could not prove the case beyond a reasonable doubt. Sulkowicz has said it was because she declined to participate in the DA’s investigation. (The DA declined to comment to Newsweek.) But the report was enough for the Columbia Daily Spectator to publish Nungesser’s name, confirming the identity of Sulkowicz’s long-alleged rapist. “I knew that was the point of no return,” Nungesser says. “I knew life was never going to be the same again.”

Throughout the ordeal, Nungesser’s parents regularly emailed school administrators, including President Lee Bollinger. Every email expressed a new concern:

We have just learned that our son was ambushed outside his residence by two reporters.... Do we have to wait until Paul is beaten up, severely wounded or even killed?... We just talked to Paul on the phone and found him devastated, depressed and without any support.... We feel that his well-being is seriously in danger.... You are again massively worsening our son’s situation.... Shame on you, Mr. President!

Columbia’s responses, which the parents provided to Newsweek, were usually boilerplate, stating that the school “takes these matters extremely seriously.” “Every time we said, ‘Please, Columbia, do something,’” Karin says. “And they didn’t.”

Then came the art project for which Nungesser’s accuser would gain international fame—and credit for her school thesis. She titled it Mattress Performance (Carry That Weight). In a September 2014 video, she declared she would carry a mattress around campus “for as long as I attend the same school as my rapist.” That video now has more than 2.2 million views.

Nungesser was appalled and scared. “Immediately, when I found out about the project, I reached out to Columbia. 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.’ And I was just completely—yeah, ignored is not even strong enough” for how little they seemed to care.

The image of Sulkowicz struggling under the weight of her mattress became a national symbol, her “Carry That Weight” slogan a rallying cry. She appeared on the covers of New York magazine and the New York Times Arts section. New York art critic Jerry Saltz named her project the best “art show” of 2014. She attended President Barack Obama’s State of the Union address as Gillibrand’s guest, and women’s groups showered her with awards. Students at more than 150 schools participated in “Carry That Weight” days of action, hauling mattresses across campuses.

“I would hear people talking about it who didn’t even know me or didn’t recognize me. I would hear people discussing it on the subway...non-Columbia people,” Nungesser says. “I kept telling myself, ‘I’m not that person.’”

He considered leaving school but knew people would take that as an admission of guilt. So he and his parents stopped emailing Columbia, pleading for help, and lawyered up.

‘Dark Days Ahead’

Four thousand miles away from the ivy-covered residence halls, neoclassical libraries and Alma Mater sculpture that watches over the Columbia campus, Nungesser, who turns 24 this month, sips espresso macchiato in a dimly lit café in the trendy Prenzlauer Berg section of Berlin. He grew up around the corner and later moved away, long before it was trendy. It took months of negotiating to arrange this meeting; he’s wary of reporters and hadn’t spoken with one at length since before graduation.

Nungesser has been depicted as a privileged Ivy Leaguer from Europe, but he attended Columbia on a need-based scholarship, and his family had to borrow to pay his legal fees. These days, he lives with his parents and freelances as a cinematographer. He plans to apply to film school, but he feels that he’s lost all of his New York connections and that he can’t return to the U.S. He says prospective employers Google his name and question him about what happened at Columbia. “It’s something that I have to explain in detail every single time, which is very painful to do, and ultimately it’s also been leading up to me missing out on several jobs,” he says.

If the “mattress protest” turned Sulkowicz into the poster girl for campus sexual assault survivors, it made Nungesser the poster boy for alleged campus rapists. “The question was always, What can we do to clear Paul’s name?” Karin says. As the “mattress protest” went viral, and Columbia was doing nothing to stop it, Nungesser’s father flew to New York City to hire an attorney. He happened to visit just as Sulkowicz’s New York cover hit newsstands, and he saw it everywhere. He met with Andrew Miltenberg, a lawyer who had gained media attention for representing 75 to 100 accused students (by his count) and who had previously sued Columbia.

On April 23, 2015, Nungesser filed a federal lawsuit against Columbia, its trustees and president, and Jon Kessler, an art professor. (Kessler declined Newsweek’s interview request. Lawyers for Columbia and Kessler did not respond to Newsweek’s requests for comment, but in court filings they deny responsibility for Sulkowicz’s conduct.)

The complaint details the many ways Columbia allegedly allowed Sulkowicz to commit gender-based harassment: Kessler helped Sulkowicz develop the “mattress” idea; Columbia let her carry the mattress in school buildings and on school-provided transportation; Bollinger supported Sulkowicz in the press; the school promoted her project on its website and paid part of the cleanup fee for a “Carry That Weight” rally. The suit claims those actions “significantly damaged, if not effectively destroyed Paul Nungesser’s college experience, his reputation, his emotional well-being and his future career prospects” and “deprived him of equal access to educational benefits and opportunities at Columbia on the basis of his gender.”

One name that doesn’t appear on the list of defendants is Sulkowicz’s. “Ms. Sulkowicz believes what she believes, and she’s created this story for herself,” Miltenberg says. “The greater distress is at Columbia for allowing her to have on-campus rallies, allowing her to base her thesis on this, allowing her to essentially legitimize her story.... At this point, she’s sort of a footnote.”

Sulkowicz declined to speak with Newsweek but said by email, “Paul Nungesser’s complaint is filled with lies.... 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.”

Two days after Nungesser filed, Kessler posted a link on Facebook to an article about the lawsuit. He tagged Sulkowicz and wrote, “Dark days ahead...”

‘Sex Is Confusing’

Twenty years before Sulkowicz carried that weight, a woman at Vassar, once all-female, accused S. Tim Yusuf of sexual harassment. At the time, schools were just starting to grapple with “date rape,” which Ms. magazine had called a campus epidemic. Court documents are now sealed, but Yusuf recalls that his accuser claimed he had tried to pull the towel off her as she came out of the shower. “It was terrifying, that’s really the only way to put it,” he says. “At the time, you don’t really understand everything that’s going on. You’re too emotionally involved to really question what’s being said to you.”

Yusuf maintained his innocence and had records proving he was elsewhere at the time of the alleged incident, but he says the disciplinary panel refused to consider them. The school suspended him for a semester.

Soon after, in 1992, Yusuf sued Vassar for discrimination based on gender and race. (He is South Asian–American.) A judge dismissed the case, but Yusuf appealed, and another judge reinstated the gender claim and issued an opinion. It was likely the first time a court had supported a claim of erroneous outcome from a discriminatory school disciplinary hearing. Yusuf and Vassar eventually settled before trial, but the precedent was set.

The current wave of male-Title IX cases often cite Yusuf v. Vassar, but proving that a school not only discriminated against a male student but also did so because the student is male is difficult. “You almost have to show that a woman who was accused in a similar situation would have gotten more favorable treatment somehow, and that’s an almost impossible standard,” says Patricia Hamill, a lawyer in the Brandeis case. That’s because “it’s so rare that a woman is accused,” she notes.

Few male-Title IX cases since Yusuf v. Vassar have been even remotely successful, and those ended in settlements, not full-out wins. “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,” says the Association of Title IX Administrators’s Sokolow. “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.”

Miltenberg, Nungesser’s lawyer, has brought a handful of Title IX claims by accused male students to court but says they’re not “getting a tremendous amount of traction.” Despite that, he remains optimistic. “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.”

Advocates for sexual assault victims are scornful of these Title IX lawsuits. “I worry that it encourages or it incentivizes universities to evaluate actual allegations of sexual assault and dating violence not based on their merits, and not to investigate the truth of what happened, but simply to evaluate who poses the greater sort of threat of litigation,” says Zoe Ridolfi-Starr, a recent Columbia graduate. She helped Sulkowicz carry her mattress at graduation and is now deputy director of Know Your IX, a survivor-run anti-sexual-violence campaign. “The impact on individual survivors can be tremendous,” she says, adding that the lawsuits can expose survivors to unwanted publicity and give the impression that the number of false rape accusations is higher than it is.

Perhaps the problem isn’t wrongful accusations but the definition of sexual assault. “I don’t think anybody knows what it is,” Sokolow says. “It’s fascinating to watch what these women and men—it’s both—want to label as sexually unacceptable behavior. And I wonder if it’s generational. I wonder if we’re all behind the times, and they’re redefining their own sexual mores, and we haven’t figured it out yet. Or if they’ve redefined what’s acceptable to them based on hypersensitivity, which their generation is known to possess.”

The hypersensitivity debate goes beyond sexual assault; it could apply to everything from “trigger warnings” to “safe spaces” to the recent unrest at Yale University after an administrator defended potentially insensitive Halloween costumes as free speech.

Ridolfi-Starr dismisses the “hypersensitivity” thesis. “Students finally have the confidence and the cultural space and the vocabulary to articulate when certain things are unacceptable.... That’s not because we’ve now become a bunch of delicate flowers,” she says. “You would never talk to a war veteran who has PTSD and say, ‘Aren’t you being a little hypersensitive?’”

School Title IX administrators, who investigate sexual misconduct complaints, aren’t receptive to the male-discrimination angle either. During an October seminar for Title IX administrators, Justin Dillon, a lawyer in a firm that settled an accused male-Title IX case against George Washington University, and who has two such cases now pending, cautioned attendees from holding only one student accountable after two incapacitated students have drunken sex. “They are frankly raping each other,” he said. The audience bristled, and the lawyers presenting with him, Hamill (from the Brandeis case) and Susan Kaplan, had to tell attendees to settle down.

Dillon found that reaction “completely unsurprising” and adds that his firm gets one to three calls per week from concerned young men or their families. “Sex is confusing. And sex when you are a college student, often away from home for the first time and trying to figure out who you are in the world, is confusing,” he says. “There is no sense at schools anymore that maybe we should just sit down with the complainant and say, ‘Wow, it sounds like you really wish you hadn’t had sex with him, but did you ever say no? And were you really so drunk that you didn’t know what you were doing?’”

The issues lawyers take with school proceedings include the vague notices schools send accused students; the single-investigator model, in which one person is responsible for the entire investigation; the lack of access the accused have to records; and the way some schools bar advocates or attorneys from aiding the accused. Samantha Harris, of the Foundation for Individual Rights in Education, says, “Even though people seem to understand the importance of due process generally, there seems to be this blind spot with regard to these sexual assault claims.”

Hamill has represented about two dozen male respondents in the past few years. She got one of the rare settlements for a male-Title IX case, against Swarthmore in 2014. “These are young people who are navigating relationships. Communication isn’t always as clear as everybody might like it to be,” she says, speaking generally. “I would hate to be on a college campus today—on either side of this—because of the threat.”

‘They’re Ruining Kids’ Lives’

For six of Luke’s eight semesters at Colgate, college was everything he had hoped it would be. He helped lead six student organizations at once, studied abroad in China, had a long-term girlfriend and spent a summer researching climate change with a professor in a Costa Rican rain forest. Once, during a “Walk a Mile in Her Shoes” event to raise awareness about sexual violence, he strapped on red high heels and marched around campus. Another time, he helped a female activist classmate carry her mattress.

In October 2014, coinciding with a “Carry That Weight” day of action, a female student with whom Luke was friendly allegedly helped organize a forum at Colgate on sexual assault. Over the next two days, she and two more women who allegedly attended the forum filed sexual misconduct complaints against him. “I didn’t tell anybody at that point because I had no idea what I was up against,” says Luke, who asked that Newsweek not use his real name because he fears the allegations will destroy his reputation. He didn’t even tell his parents. “I had complete faith in the Colgate administrator’s system because Colgate had been so good to me and I trusted that they would find the truth and they would find me not guilty.”

“He’s a college kid. He was 21 years old. He doesn’t know that he’s just been hit by a truck,” says Luke’s father.

More than five months passed before the school told Luke the details of the allegations. He says he was allowed to review them only in a file at the associate dean’s office, during office hours and with his adviser present. “So while the three complainants had three years to come up with their case and the investigator had five and a half months to come up with her case,” Luke says, “I was given less than a week to read through an 85-page file and come up with a defense.”

One of the women alleged Luke had “digitally penetrated” her vagina without her consent. Another said he had “touched her buttocks” and breasts without consent and exposed his penis and forced her to touch it. The third claimed he had touched her breasts without consent, “digitally penetrated” her vagina without consent, exposed his penis, forced her to touch it and “pushed” it against her thigh without consent. These incidents had all allegedly happened two and a half to three years before the complainants filed.

“I remembered the encounters I had with these women my freshman year, but I did not see anything wrong,” Luke says, “so I was replaying them through my head hundreds, thousands of times. I couldn’t sleep.” He insists that the first woman allowed him to touch her breasts and that they did nothing else. He says he never went beyond consensual kissing with the second woman, while she was shirtless, and consensual kissing and under-the-shirt touching with the third woman.

A hearing panel—which included the administrator who allegedly spoke at the October sexual assault forum that one of the complainants organized—reviewed all three accusations at once, found him responsible for all and expelled him. It was 39 days before he was set to graduate.

“I didn’t know the unfairness,” Luke’s father says, “[until] I went online and said, Holy cow, this is happening all over America. And he was one of those guys that got hit, that got swept up in this. These administrators don’t have any capability to give a fair process. They’re just not qualified, and they’re ruining kids’ lives.”

Luke filed a Title IX lawsuit in August. Colgate has not yet filed a response. A spokeswoman for the school declined to comment on pending litigation, and its lawyers did not respond to Newsweek’s emails. The names of the accusers are not public, and they are not defendants in the lawsuit.

Perhaps lawsuits such as Luke’s and Nungesser’s indicate that a fundamental shift is underway in the campus rape debate. “I don’t think this is the beginning of the end, but I think it’s the end of the beginning,” says Miltenberg, who also represents Luke. “Hopefully, people take a closer look at allegations like this. Now, that’s not to say that there aren’t real sexual assaults and rape. Those are very serious problems. But so is being falsely accused of something.”

‘How Would You Feel?’

Weeks after filing their lawsuit, and days before that tense Columbia graduation, Nungesser’s parents visited Dodge Hall, a brick building near the center of the campus. An art exhibition on the third floor featured work by graduating seniors. They expected to find Sulkowicz’s mattress there. They knew seeing it would be painful, but they wanted to bear witness to what their son had endured.

Instead, they came across Sulkowicz’s large portrait of a man who they instantly thought resembled their son, printed over an issue of The New York Times that included a story about him. The figure was grinning and pulling down his underwear, exposing his erect penis.

Another print, over the Times article about Nungesser, showed the same man in profile, naked and on a mattress, on top of a woman they thought resembled Sulkowicz. She was naked, pinned down, on her back with her knees by her shoulders. The male figure was penetrating her in the same way Sulkowicz has said Nungesser raped her. A third print showed the female figure covering her eyes, with the words “You can take my story but my body won’t be overwritten.”

“How would you feel having your face and your genitals drawn over an article with your name, which is then exhibited to the entire school?” Nungesser says. “Columbia is hosting this, is facilitating this.... A Columbia faculty [Hidden Content: Login/Register to View]
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Nungesser has been depicted as a privileged Ivy Leaguer from Europe, but he attended Columbia on a need-based scholarship, and his family had to borrow to pay his legal fees. These days, he lives with his parents and freelances as a cinematographer. He plans to apply to film school, but he feels that he’s lost all of his New York connections and that he can’t return to the U.S. He says prospective employers Google his name and question him about what happened at Columbia. “It’s something that I have to explain in detail every single time, which is very painful to do, and ultimately it’s also been leading up to me missing out on several jobs,” he says.


And a lacrosse player had to change his name, because of the same problem.

But nonetheless, (a la Ken Burns), the false accusations were only a "minor inconvenience"...


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http://www.washingtonexaminer.com/newsweek-highlights-the-other-side-of-campus-sexual-assault-debate/article/2578070

Newsweek highlights the 'other side' of campus sexual assault debate
By Ashe Schow (@AsheSchow) • 12/10/15 1:23 PM

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 women allegedly 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.
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