Because of the nature of the crime, campus rape cases can be complicated for colleges to adjudicate. In the absence of witnesses or physical evidence, determining whether an accused student is responsible is often a matter of weighing one party’s word against another’s.
But what happens when the words they exchanged privately—emails or texts or Facebook messages, for example—are posted online for anyone to see?
In recent weeks, national news outlets have published two accounts of campus rape cases that drew on the individuals’ electronic correspondence, before and after the alleged rape, in an effort to characterize their relationships.
Earlier this month, The Daily Beast published an article that detailed the rape allegations by one Columbia University student, Emma Sulkowicz, against another, Paul Nungesser. The university eventually cleared Mr. Nungesser of Ms. Sulkowicz’s allegations, but her subsequent protest—carrying a mattress around the campus until, she says, Mr. Nungesser is expelled or they both graduate—has become a symbol of campus rape activists nationally.
For the article Mr. Nungesser provided transcripts of Facebook chats between himself and Ms. Sulkowicz suggesting their relationship was friendly even after the alleged rape. For example, one sent more than a month after the incident reads: “I love you Paul. Where are you?!?!?!?!”
But an annotated version of the transcripts that Ms. Sulkowicz provided to Jezebel, in response to the Daily Beast article, purports to put the chats in proper context. Ms. Sulkowicz told Jezebel she had adopted a friendly tone so that she could arrange a meeting where she would be able to confront him.
And an article published last week in The New York Times Magazine profiled the case of a student at Stanford University, Ellie Clougherty, and a technology entrepreneur, Joe Lonsdale, who mentored her for a class there. After she filed a sexual-abuse lawsuit against him, Mr. Lonsdale created a website that presents some of their correspondence in an effort to discredit her claims.
As the two cases illustrate, private statements can be used to support vastly different interpretations of an incident—or a relationship. Further complicating matters is that dealing with the aftermath of a traumatic episode can cause a victim’s behavior to seem erratic.
Weighting Digital Evidence
Away from the court of public opinion, in campus judicial proceedings, transcripts of private conversations are often fair game. Colleges’ investigators try to get their hands on anything and everything related to a case, including digital correspondence.
“I’d rather have all the cards on the table, and be able to look at all the cards, than have someone like in a court system choosing what the jury gets to hear and what they don’t,” says Gary G. Dickstein, assistant vice president for student affairs and deputy Title IX coordinator at Wright State University, in Ohio. “In a conduct case, we will use any piece of information that is provided to try and determine its impact on whether, more likely than not, a student is responsible.”
It would be “remarkably irresponsible” not to consider digital communication between a victim and a perpetrator in a hearing, says Allyson Kurker, a lawyer who helps colleges investigate sexual-assault complaints. But not all digital communication can be given the same weight, she says.
“I’ve seen text messages exchanged very, very soon after an alleged assault, and I put less weight onto those,” she says. If a woman is saying things like “It’s OK” or “I’m fine,” says Ms. Kurker, “they don’t mean anything except the person just doesn’t want to deal with the situation right now.”
But if, weeks on, the alleged victim is sending friendly texts to the alleged perpetrator, that could mean something different. “It doesn’t make sense,” she says, “that they would be exchanging flirty text messages after that time if something had gone wrong.”
Andy Thomason is a web news writer. Follow him on Twitter @arthomason.
Robin Wilson writes about campus culture, including sexual assault and sexual harassment. Contact her at robin.wilson@chronicle.com.
