@QuantMech Nussinger would carry the burden of proof in a defamation (the lawyer’s fancy word for both libel and slander) suit.
And yes, carrying that burden would be difficult. Although I would argue not impossible. To prove defamation directed at a private person, all Nussinger would have to prove was that the statement (that he was a rapist/sexual assaulter, etc) was made negligently. Could a lawyer construct a case based on the findings by the university, and all of the text messages etc sent by Sulkowicz that at least arguably raises a reasonable jury issue over whether she is lying? Yeah. But such cases are tough, and at best it would be a coin flip to even get to a jury. And really, why would he do it? She has no money, and given the current path she is on is not likely to have any in the immediate future. So he isn’t going to be able to recover much from her even if he wins. Plus, given the tenor of the coverage we have seen about this issue over the last year and a half or so, most of the people in the general society who are persuadable already think he is the victim here. So he has very little to gain reputationally as well.
And I agree with you wholeheartedly that the issue is drawing the line between legitimate protest and harrassment. Once again though, the issue is that Columbia waded in here. They promise a “prompt and fair investigation and resolution of all complaints related to sexual assault, gender-based harassment, intimate partner violence and stalking, and ensures that Columbia is in compliance with Title IX and state laws prohibiting gender-based discrimination” and have a stated goal of working “to ensure a safe, welcoming, and harassment free-environment for all members – students, faculty and staff – of the Columbia community”.
Yet within that context, Columbia provided university credit and at least implicit support for a project obviously and openly intended to harrass a student because of his gender and sexuality and then refused to consider the harrassment complaints raised by that student, even when the harrasser publicly and frequently admitted her intent was to hound him off campus. That is a tough distinction to harmonize.
My point in raising the issue of defamation was not so much to suggest that Nungesser should or could file a suit, as to illustrate the difficulty in meeting the burden of proof. Perhaps a jury consisting entirely of young men would find in his favor (or young men + a few of the posters here), but I think the odds are very strongly against it.
I also think that posters on this thread need to consider seriously the level of anger and frustration that a person can have, if she/he has been assaulted and cannot meet the burden of proof. This is the case in many instances when the two people are alone. I don’t know about Sulkowicz’s situation. I can only say that she seemed very angry and frustrated.
@QuantMech Maybe you are confusing people’s criticism of Columbia’s handling of this issue with people being unsympathetic to Sukowicz. Personally I am very sympathetic to Sukowicz (I have two teen dds) but that doesn’t stop me from thinking that Columbia was wrong to allow Nungesser to be harassed all the way to Commencement.
Look, if Columbia thought Nungesser was guilty, they should have said so and kicked him out of the uni. But since they found him “not responsible”, they should have treated him the same way they would treat any of their students in good standing, and that includes providing a safe environment free of nonstop harassment. They failed to provide that to Nungesser.
@QuantMech, throughout pretty much all of western legal history, a person who asserts a fact carries the burden of proving it. In this case that means that our legal system is based on the idea that Sulkowicz should prove her assertion to a jury of her peers, something she manifestly can not do, even if you picked a jury entirely of young females. We know this because even in the stacked deck of a university title ix procedure she was unsuccessful. Whether Nussinger can prove that she subjectively knows or should know that she is lying is a completely separate and different matter.
And I don’t care how “angry and frustrated” she is. She obviously wanted to destroy the guy’s life. Whether this was because she was assaulted or because he didn’t want to date her anymore is I guess debatable. She led with trump, and accused him of assault with both the university and the police. Then neither would do what she wanted them to do. So she acted like the spoiled child she is and stomped her feet and moved on to other means of trying to destroy him. It got her a cameo at the state of the union and a brief period where she was held up as a person of curage and conviction. And then the other shoe dropped, and people were treated to her text messages and face book posts. And suddenly she was not the poster child for sexual assault survivors anymore, but rather what she appears to be, an obviously troubled young woman. All of which is fine. That is the world in which we live.
But again, the issue at hand is not whether she should be allowed to call him a rapist or stand on the sidewalk in front of his house with a sign 24x7. The issue is that the school involved itself in the process in a way that is at least arguably contrary to their written policies. So unless you are going to sit there and argue with a straight face that Columbia would provide credit to a guy who based his senior project on the fact that his ex girlfriend is a “fallen woman” and should be shamed off campus, no amount of “oh, poor Emma” is really relevant.
I resent this slur. I have freely admitted that it seems to me that the evidence weighs in favor of Nungesser. But that doesn’t mean that, if on a jury, I would not endeavor to listen to all of the evidence in such a case with an open mind. This is ONE case.
I know that you deal with students who are assaulted on your campus. How would you like it if I suggested that YOU were inclined to see every male as guilty, and could not make an impartial decision?
BTW, yes I HAVE considered the level of anger and frustration she would experience if her story were true. I have also considered the level of anger and frustration she would experience if HIS story were true. I don’t think women are liars. I am not unaware of the problem of campus rape. I have read plenty about the often inexplicable or self-defeating behavior of victims.
The European press is reporting that Nungasser, a German national, has been advised by ICE that he may be visa ineligible given the nature of the accusation against him and the language of US immigration law (which does not require a foreign national to have been convicted of an offense to be denied a visa).
@bestmom888 So what you are proposing is that the university stop other students from exercising their rights? That’s an interesting approach. Personally, having family at Columbia, I think any attempt to do so would have resulted in even larger demonstrations.
@Ohiodad51 I stand by my post. For a lawyer to post something that says, “I know more but cannot say anything” is both unethical and, frankly, fatuous. If you cannot say anything, fine. Don’t.
@Ohiodad51 I stand by my post. For a lawyer to post something that says, “I know more but cannot say anything” is both unethical and sophomoric. If you cannot say anything, fine. Don’t.
This isn’t a case over whether they did have sex (they did), whether she carried the mattress (she did), or whether the university allowed it (it did). The jury would be deciding what those actions, or lack of action, meant as far as the law and the damages.
I don’t think any particular make up of jurors would be slam dunk for one side or the other.
@exlibris97 I proposing that Columbia provide a safe environment, free of nonstop harassment, for all of its student. Like you, Columbia initially had trouble understanding the difference between protest and nonstop harassment.
And where exactly did I or anyone else say anything like that? The closest anyone has come to anything like that is the lawyer @HarvestMoon1 was quoting from twitter, which I agree and have stated is kinda weird. But I at least haven’t searched twitter to see what, why or how that lawyer was opining.
As far as my statements or @hanna’s, everyone including you is entitled to their own opinion of their worth based on what we have shared of our background and experience. But you are not entitled to make up your own facts.
Does Columbia truly lean left? Sure, there are probably some stereotypical pinko, Huey Newton jacket-wearing, Abby Hoffman quoting, Quentin Crisp emulating non-conformists on the campus today…but Mark Rudd, Bernadette Dorn and the other Weathermen haven’t been seen on Morningside Heights in years. They can’t afford the rent these days. Nicholas Murray Butler is alive and well, however.
I can’t believe that exists in media - he was never charged by any US regulatory authority - if ICE considers honor code violations by universities grounds for retracting visas we’ve got bigger issues than Title IX and plenty more kids that would be primed for extradition or visa retractions.
My remark about a jury consisting entirely of young men (or young men + some of the posters on this thread) was not intended to be a slur–rather, just to mean that a few hold-outs on the jury could prevent a defamation case from succeeding.
Sorry, for some reason, I can’t seem to edit my post #117. I wasn’t meaning to insult anyone with the remark about the jury. It is pretty clear that I am generally inclined to believe a woman who claims that she was assaulted. While I would certainly try to be open-minded, it is probably unlikely that I would be empaneled. But among the general populace, there are surely people with less strong leanings in the same direction, who would likely wind up on a jury.
What the administrators at Columbia thought is unclear to me. I have encountered situations where I am reasonably convinced that a student has done something wrong, but it is not provable. So the process “exonerates” the student, and the university cannot take any action.
I have not looked into the Sulkowicz case in any detailed way. So it is possible that I have things quite wrong. However, when one makes remarks that a young woman is “troubled,” I think the timeline is of great importance. A person might become quite troubled in the aftermath of the assault. In some cases, simply becoming involved with a particular young man might indicate that the woman is already troubled.
False accusations do concern me. Multiple false accusations are certainly a possibility. I try to keep an open mind about that.
Yet again, the general difficulty–not speaking of Nungesser’s case, which I don’t know enough about–is that it is entirely possible that an assault can occur and not be provable. In cases where the students know each other and there are no witnesses, the standard of proof in a court of law can essentially never be met, in my opinion. The university standards can be met only sometimes. I know of no possible resolution of this situation. But free, genuinely effective counseling for the woman might be a start.
You’d be surprised about who the holdouts are on juries. Young people? Rarely. My judge used to call them ‘jello’, ready to be molded into anything the lawyers want. Not as many life experiences to say ‘Oh, I would have done that.’
Older people? Much harder to convince into a whole new way of thinking.
Thank you, alh, I had not read this letter. It is quite troubling. Part of the difficulty could have been avoided if the university had rules that required legal representation for both parties at a hearing, if one party (Nungesser in this case) is represented by legal counsel.
I would be very happy if more lawyers were willing to represent young women pro bono in such a case–if the accused “lawyers up” for the university hearing.
Also, not being able to correct errors of fact, or at least put it on the record that there are errors of fact, is really problematic.
You know, even the cheezoid light mattresses that many universities (including the Ivies) provide are quite heavy to carry around.