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OpinionOpEd

Police and courts, not universities, should probe campus assault cases

Sen. Kirsten Gillibrand, right, announces an effort in

Sen. Kirsten Gillibrand, right, announces an effort in April 2014 to combat campus sexual assault. With her are Columbia University students Zoe Ridolfi-Starr, left, and Emma Sulkowicz, who said they had been assaulted. Photo Credit: Charles Eckert

The story of Emma Sulkowicz, the Columbia student who has carried a mattress around campus to protest what she sees as the university's mishandling of her rape complaint, has drawn national and even international attention. Sulkowicz has been on the cover of New York magazine and recently attended the State of the Union address as a guest of Sen. Kirsten Gillibrand.

In all the coverage of her protest, her claims have been treated virtually as fact, despite pro forma references to the "alleged rapist." But recently, I had a chance to look at a previously untold side of this story -- reported in my article posted last week by the online publication The Daily Beast -- which raises serious questions about a rush to judgment embraced not only by the media but by a U.S. senator.

The media narrative certainly offered a shocking tale: Sulkowicz said that in August 2012, a consensual sexual encounter she had with a fellow student, Paul Nungesser, suddenly turned violent when he hit her, choked her and anally raped her. By her account, she came forward months later after hearing claims that Nungesser had sexually assaulted two other women -- but, because of incompetent university investigators and biased disciplinary panels, he had been cleared of all charges.

The facts turn out to be far murkier. In the days after Sulkowicz claims she was brutally raped by Nungesser, she came to his parties and had playful Facebook chats with him (the authenticity of which she has confirmed). Many victims advocates say that women raped by friends or lovers may remain on seemingly friendly terms with their attackers because of trauma and denial. The tone of the Facebook messages seems difficult to square with such an explanation. While these records don't prove Nungesser's innocence, they would be highly exculpatory in any legal proceeding. Remarkably, university rules precluded the messages from being introduced at the hearing, but Nungesser was cleared anyway, apparently because of what the panel regarded as improbable aspects of Sulkowicz's account.

Moreover, the corroborating effect of multiple complaints in this case is complicated by the fact that the three alleged victims may have influenced each other.

Nungesser was exonerated in a process with far fewer protections for the accused than a criminal trial. Yet he has been widely treated as a rapist in the media, and Gillibrand (D-N.Y.) issued a press release quoting Sulkowicz's claim that her alleged attacker was a "serial rapist." The senator also referred to Sulkowicz's "rapist" in a Huffington Post column. While Nungesser's name was not mentioned, the implicit presumption of guilt is still disturbing. (In fact, only one complaint clearly alleged rape. A second woman said Nungesser grabbed and kissed her at a party. The third, an ex-girlfriend, accused him of emotional abuse and had retroactively come to see their sexual relations as nonconsensual.)

Rape is a vile crime; to support the victim and condemn the perpetrator are natural and noble instincts. But the presumption of innocence is a key principle of justice and a fundamental societal value. This story should be a reminder of its importance to both journalists and politicians.

The story is also a reminder that rape cases should be handled by police and courts, not universities -- and not only because law enforcement and the justice system are better suited to the task. Police and court records are publicly accessible; university records are sealed by law, which means key aspects of this nationally publicized story are nearly impossible to verify. In the name of justice for both accusers and accused, it's time to fix this broken system.

Cathy Young is a regular contributor to Reason magazine and the website RealClearPolitics.

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