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Paul Nungesser’s, CC '15, lawsuit against both Columbia and visual arts professor Jon Kessler alleges that both parties violated Title IX in their handling of Emma Sulkowicz’s complaint of an alleged sexual assault.

Paul Nungesser's, CC '15, lawsuit against both Columbia and visual arts professor Jon Kessler alleges that both parties violated Title IX in their handling of Emma Sulkowicz's complaint of an alleged sexual assault against Nungesser, which the lawsuit says has "damaged, if not effectively destroyed" Nungesser's reputation, safety, and career prospects."

Sulkowicz, who claims that Nungesser raped her, has drawn international media attention for her senior visual arts thesis, "Carry That Weight," in which she is carrying a mattress around campus until Nungesser is no longer there. In turn, Nungesser has been named in media stories on Sulkowicz, and his name was one of four listed on flyers that named alleged rapists, which found in bathroom stalls across campus last fall. Nungesser's lawsuit charges that the University not only allowed Sulkowicz to break confidentiality agreements surrounding her complaint against him, but also endorsed and supported her efforts to do so.

In addition to Title IX, Nungesser's lawsuit charges that Columbia and Kessler violated New York State human rights, civil rights, and general business laws through negligence, discrimination, harassment, the intentional infliction of emotional distress, unfair or deceptive practices, and breach of contract, particularly because Nungesser was found not responsible through the University's adjudication process.

"By refusing to protect Paul Nungesser, Columbia University first became a silent bystander and then turned into an active supporter of a fellow student's harassment campaign by institutionalizing it and then heralding it," the filed complaint said.

The lawsuit claims that the University effectively became a supporter of "Carry That Weight," while Kessler himself played a key role in designing and orchestrating this alleged instance of gender-based harassment.

"Columbia University knew about about the harassment from the beginning, and had the power, as well as the legal and contractual obligation, to protect Paul Nungesser," the lawsuit said.

The filed complaint details three-and-a-half years' worth of interactions between Nungesser and Sulkowicz, including an incident—referred to as "the Sophomore Sexual Encounter"—that Sulkowicz would later report to the Office of Gender-Based Misconduct as an alleged rape.

"They engaged in consensual sex in Emma's bed," the lawsuit said. "The Sophomore Sexual Encounter involved vaginal and anal sex, followed by oral intercourse."

This incident was first described from Sulkowicz's perspective in the first installment of a two-part Blue and White article, by Anna Bahr, BC '14, in which Sulkowicz said that he forcefully anally raped her.

But Nungesser's lawsuit charges that Sulkowicz's account of the incident is implausible because there were no witnesses, medical report, testimony from her friends or family members, or evidence of changes in her behavior toward Nungesser, in addition to "varying accounts" on whether or not she had told others what had happened.

The complaint also claims that Sulkowicz had a "history of alleging sexual assault" because she had previously reported other Columbia students for gender-based misconduct.

The lawsuit alleges that the University allowed Sulkowicz to break confidentiality agreements surrounding her complaint against him, thus publicly misidentifying him as a rapist, despite his having been found "not responsible" by the University's grievance procedures.

When Bahr reached out to Nungesser for comment, he did not answer in order to avoid breaking the confidentiality agreements recommended by the University, the lawsuit says.

"Columbia University did not inform Paul of its [the article's] appearance and did not do anything else with respect to what was obviously a major breach of the University's confidentiality policy," the complaint said. "Only after Paul complained to Columbia University about this new and massive breach of confidentiality did University officials express concern and note the online witch-hunt started in the comment section of the article."

In comparison, the lawsuit alleged that Sulkowicz was not punished for breaking the confidentiality agreement on numerous occasions:

According to the lawsuit, Sulkowicz forwarded Nungesser's name to Bahr, spoke about the case to a reporter from the New York Post, and arranged for the board of Alpha Delta Phi Society—of which both she and Nungesser were members—to notify members that an alleged rapist was living in the fraternity's brownstone.

Furthermore, the lawsuit said that Bahr's article—along with "rapist lists" circulated around campus bathrooms last spring—made Nungesser easily identifiable to many Columbia students, thus effectively branding him a "serial rapist."

The lawsuit also said that a police complaint filed by Sulkowicz was dropped by the local District Attorney's Office, despite her announcement that she had chosen not to advance with police charges.

Since Sulkowicz began her senior thesis last September, according to Nungesser's suit, Kessler has engaged in teacher-on-student, gender-based harassment by approving the thesis for course credit and "publicly endors[ing] her harassment and defamation of Paul."

Similarly, according the lawsuit, the University has effectively supported Sulkowicz's "defamation and harassment movement" because, among other claims, the Institute for Research on Women and Gender's website publicly promoted her thesis and that the University shouldered $1,000 of the clean-up cost of the "Carry That Weight" rally last fall, which was inspired by Sulkowicz's thesis.

According to the lawsuit, Nungesser has also received public threats from Sulkowicz as well as a Facebook account named Jay Good. While she told the New York Times that it's "not safe for him to be on this campus," Good commented on Sulkowicz's Facebook profile that "he [Nungesser] needs to practice silence or suicide before he gets dealt with accordingly."

Finally, the lawsuit alleges that in sponsoring Sulkowicz and her project, the University and Kessler have jeopardized Nungesser's future job prospects and his ability to remain in the United States, as he would require full-time employment to remain in the country legally after graduation.

Nungesser's lawyer, Andrew Miltenberg, has made a name for himself defending college students who have been accused of sexual assaults, according to a New York Times article.

Sulkowicz did not respond to requests for comment, while Nungesser could not be reached for comment. Miltenberg, Nungesser's lawyer, also did not respond to requests for comments.

teo.armus@columbiaspectator.com | @teoarmus

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