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Can and Should an Alleged Columbia University Rapist Ever Be Believed?

There's a certain model of mostly Third Wave feminism which argues that it's entirely possible for a woman who was sexually assaulted to not realize she was assaulted until well after the assault and that she and she alone decides what constitutes an improper interaction. Which of course means that it's entirely possible for a man who sexually assaulted a woman to not realize he committed a crime against someone until well after what he may have thought was a typical sexual encounter has taken place.
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Am I a rapist? At first blush it's an absurd question to ask. I've never sexually forced myself on anyone; on the contrary, I've always believed that if a woman isn't interested in me, what joy would I possibly get out of trying to compel her to be? I was always more into being thought of as a decent guy than I was into getting laid. But here's the thing: I did spend an extended period of time as a single man in New York City 14 years ago and during that time I did what thousands and thousands of other single men -- and women -- do in New York City. To put it bluntly, I went out, had drinks, met other people having drinks and sometimes slept with them. Previous to New York I wasn't a one-night-stand type of person, but during my tour there post-9/11 I had a number of them, for all the reasons people seek out intimacy in Gotham and certainly a few that were specific only to that unusual time period. There are women I've been with whom I never saw again, which obviously means that they never saw me again either. While there were the occasional pangs of regret -- the little voice in my head saying, "That was a stupid thing to do" -- I never walked out on someone or to my knowledge made her feel uncomfortable, unappreciated or lacking for respect.

But that's the key, isn't it? To my knowledge I was always the decent guy I wanted to be, even when I was doing somewhat indecent things. There's a certain model of mostly Third Wave feminism, however, which argues that it's entirely possible for a woman who was sexually assaulted to not realize she was assaulted until well after the assault, which of course means that it's entirely possible for a man who sexually assaulted a woman to not realize he committed a crime against someone until well after what he may have thought was a typical sexual encounter has taken place. Like millions of people, male and female, I had sexual encounters that began with reluctance but ended in bed. So who's to say that reluctance wasn't interpreted far differently by my partners at the time than it was by me? That same model of feminism also believes heavily in the notion that it's impossible for someone who's been drinking to consent to sex. So if this is true, it means that there was a period in which I didn't have a whole lot of "consensual" sex. In fact, as a friend of mine recently put it, if this particular standard for consent were applied throughout all of society rather than simply in vague legislative declarations and on a growing number of college campuses, New York City would pretty much be the rape capital of the planet every weekend.

On Monday The Daily Beast published a lengthy piece detailing the story of Paul Nungesser. If his name doesn't immediately ring a bell, what he's accused of and a very specific and highly publicized reaction to his alleged crime probably will. Nungesser is a Columbia University student who in April of 2013 was called before the school's Office of Gender-Based and Sexual Misconduct and informed that he was being accused of rape by a fellow student. The alleged attack happened in August of 2012 and the young woman who claims to be the victim, Emma Sulkowicz, went on to make headlines -- including a New York cover story and a seat next to Sen. Kirsten Gillibrand at last month's State of the Union address -- when she began carrying a mattress around campus meant to both symbolize the burden rape victims carry and protest the fact that her alleged attacker hadn't been expelled. And that's what writer Cathy Young takes you through in her article: Nungesser's side of the story, which includes the fact that he was ultimately cleared of all charges by the university.

Newly presented within the piece are Facebook and text message transcripts Nungesser made available which seem to show Sulkowicz being not just cordial but friendly for months following the incident. Two days after allegedly being compelled to have sex against her will -- the accused says the sex was consensual -- she accepted an invitation from Nungesser to go to a party, writing, "I feel like we need to have some real time where we can talk about life and thingz... because we still haven’t really had a paul-emma chill sesh since summmmerrrr." Then in October, after being wished a happy birthday by Nungesser, she responds, "I love you Paul. Where are you?!?!?!?!" Now it's true that interactions like these don't, in and of themselves, disprove an accusation of sexual assault. But they might explain why Nungesser was initially confused about being called before Columbia's Office of Gender-Based and Sexual Misconduct, saying that he figured the board must have needed him as a witness in some other case it was looking into.

(Photo: Andrew Burton/Getty Images)

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Who knows whether Paul Nungesser is lying and really did know exactly why he was being investigated? But the reaction by a certain segment of the progressive media to the Beast story -- certainly its willingness to give someone like Nungesser a forum -- shows the difficulty someone accused of rape will have in ever clearing his name, regardless of whether he's cleared officially. Now obviously there's a massive problem in our culture with women's rape accusations not being taken as seriously as they should be or being conveniently swept under the rug in the name of saving face or protecting the accused. But just because this problem exists -- and just because it's true that maliciously false rape accusations are rare -- that doesn't mean the fundamentals of justice, which proclaim someone innocent until proven guilty and rely on a preponderance of evidence, deserve to be tossed out. Two wrongs don't make a right, regardless of whether one injustice gets more press coverage and is considered "worse" by a very vocal segment of the population. The system has to work for everyone or it works for no one.

There are those, however, who don't seem to see it this way. Those for whom an accusation is as good as a conviction. And while they are a relative few, they drive a large portion of the conversation and have an outsized cultural influence, largely because anyone with a soul wants to take whatever steps are necessary to tear down the wall rape victims have invariably run up against for decades. Flavorwire's Sarah Seltzer is proclaiming, in the wake of an article that dares to simply ask questions about the Sulkowicz/Nungesser case, that "The Smearing of ‘Carry That Weight’ Activist Emma Sulkowicz" has begun. At Salon, Katie McDonough responded to the Beast piece with one of her own titled "The 'Perfect Victim' Myth: How Attempts To Discredit Rape Survivors Stand in the Way of Real Change," and subtitled, snidely, "A profile of the man accused of raping Emma Sulkowicz discredits the alleged victim's story. Sound familiar?" The "perfect victim" dodge is repeated by Julie Zeilinger over at Mic, in a piece that proclaims, "There are no perfect victims." Now to be clear: I call this a dodge only because the point of these two pieces, and those like them, seems to be that because we can never know how sexual assault is going to affect each individual victim -- no victim is "perfect" -- however she behaves might reasonably be chalked up to trauma and that person's own coping mechanisms. In other words, Paul Nungesser's Facebook and text messages, which he maintains are evidence of his innocence or at the very least ignorance, not only don't qualify as absolute proof, they can and should be dismissed completely out of hand.

As one astute commenter to the Salon piece explained, there are facts about this case that would, if we were talking about any crime other than sexual assault, likely leave Nungesser appearing very much wrongly accused, whether out of malice or a truly unfortunate case of miscommunication. Emma Sulkowicz didn't file a complaint with the police or the university until months after she claims she was attacked. Nungesser has produced documents which show an ongoing friendly relationship between him and Sulkowicz for some time (which she doesn't dispute). Nungesser submitted to an extensive and at times humiliating review by Columbia University and was ultimately cleared. In the wake of that decision, Sulkowicz refused to seek redress through the justice system, saying that it would be "too draining." What she did choose to do, however, is carry a mattress around campus as a supposed show of defiance and in solidarity with college rape victims. I realize that this is a controversial position to take, but when someone at least attempts to present something akin to evidence it should hold more figurative weight than a mattress. A mattress is a powerful symbol, to be sure, but it doesn't hold up in court and it shouldn't hold up in the court of public opinion. When you couple this with the knowledge that die-hard supporters of Sulkowicz seem likely to always dismiss any exculpatory evidence or claims as meaningless -- since there are no "perfect victims" -- what you get is the potential for, yes, injustice. And that should be a problem regardless of who the victim of it is.

We don't throw someone in prison just because an accusation is made against him or her, no matter that it may serve some greater societal good to believe that particular accusation whenever it's made. We have to abide by the basic tenets of our justice system and can't automatically assume that guilt is assured simply because an accuser is sympathetic. (Just like we shouldn't assume that someone can't possibly be guilty of a crime for the same reason.) When an opportunistic monster like Nancy Grace turns an accusation into a conviction on national television, she's rightly pilloried for possibly engaging in defamation and for subverting justice. She's also, occasionally, wrong. And that's the issue here regarding the response by some to the Beast story: the fact that phony rape accusations are rare doesn't mean they can't happen, which is why a thorough investigation is always required. A sensitive investigation, yes, but still an investigation. To its credit, the Columbia Spectator published a terrific reaction to the Daily Beast story in which the paper's opinion editor admits that "campus media’s goal to promote discussion about sexual assault and to support survivors became conflated with a fear of rigorous reporting." He continues, "Personally, I felt that if I covered the existence of a different perspective—say, that due process should be respected—not only would I have been excoriated, but many would have said that I was harming survivors and the fight against sexual assault." The overall point of his piece is that being willing to consider all possibilities and to report as such benefits victims as much as it does those accused.

For the most part, I don't have a dog in this fight. It's entirely possible Paul Nungesser is innocent of the accusations against him. It's also possible that Emma Sulkowicz is telling the absolute truth and Nungesser is guilty as sin (and that he's now putting one over on Beast writer Cathy Young, who identifies as a mildly libertarian feminist). But it's the third possibility that's perhaps the most daunting: that Nungesser had what he thought was consensual sex with Sulkowicz, went on about his life never being the wiser -- with his apparent Facebook messages telling him nothing was out of the ordinary -- only to find out some time later that in her eyes he had raped her. While affirmative consent may be a gross overreaction and certainly wouldn't work in the real world, outside of college campuses, it's true that sex is an interaction that relies entirely on nuance and the ability to gauge sometimes confused and confusing feelings, responses and desires. It's rarely a cut-and-dried kind of thing. A specific brand of feminism now tells us that alleged victims of sexual assault have an ocean of latitude when it comes to their feelings and ability to come to terms with what they believe happened to them. This is understandable considering the heinous nature of sexual assault. But it can certainly put those potentially accused at a disadvantage. Put it this way: While I believed at one point that I was very good at reading the signs that someone was interested in me and was in tune with my thoughts and feelings, I'm not sure I would be willing to repeat my behavior of 14 years ago if I were in the same position today. It's simply too risky -- and not just for me.

True, there's no such thing as a perfect victim. But as the case of Paul Nungesser and Emma Sulkowicz shows, these days it's all too easy to be the perfect suspect.