Columbia Settles a Complicated Sexual Assault Case

The New York Times | Anemona Hartocollis | January 11, 2021

It began as a night of drinking and flirtation between two Columbia University classmates four years ago. It turned into a federal lawsuit with unusually detailed documentation.

And now it has ended in a settlement that underscores the contentiousness of the national debate over campus sexual misconduct cases, a debate that the incoming Biden administration is expected to join soon as it considers whether to overhaul federal sexual assault policies.

Under the settlement filed on Dec. 23, Columbia has restored the diploma of Ben Feibleman, whom a three-member university panel had found responsible for sexually assaulting a female classmate. It has also agreed to pay him an undisclosed cash award and to send a statement to prospective employers describing him as an alumnus in good standing, Mr. Feibleman’s lawyer and a spokesman for the university said.

The case is unusual because Mr. Feibleman willingly sued under his own name, rather than a pseudonym, and because he had made a 30-minute audiotape of the sexual encounter. That recording became a centerpiece of his defense.

In a statement, Columbia said that it had not withdrawn its findings against Mr. Feibleman even though it had settled with him. And the accuser, who has not been identified in court papers, continues to say that an assault took place. But Mr. Feibleman’s lawyer, Kimberly Lau, said: “We consider this a victory.”

The case spanned two presidential administrations and now may have implications for a third. It paints a picture of a campus culture in which students have become hyper-aware of the rules of academic sexual misconduct and worry about how every intimate encounter is going to look down the road.

The complaint against Mr. Feibleman was filed in the fall of 2016 during the Obama administration, whose campus sexual assault policies broadly favored believing the accusers, who are usually women. Those policies were in effect through the adjudication of the case by Columbia.

In the background was the presidential campaign, during which a tape surfaced of Donald J. Trump, the Republican candidate for president, boasting about forcing himself on women. Columbia had also in the recent past received widespread media attention from the case of Emma Sulkowicz, who carried a mattress around the campus as a piece of performance art to protest what she said had been her rape by a fellow student, whom Columbia cleared.

Columbia issued its verdict against Mr. Feibleman in June 2017, declining to give him his diploma. He filed a federal suit against the university in May 2019. That suit was settled after the Trump administration had adopted a regulation to give more due process protections to the accused, generally men, effective in August.

Now, the incoming administration of President-elect Joseph R. Biden Jr. is expected to consider whether to try to dismantle the Trump administration’s rules.

Supporters of the Obama-era guidance said that it was a long overdue counterweight to a history of shaming women into not reporting sexual violence. But a growing movement of men’s rights activists said the guidance went too far because it did not give those accused a chance to defend themselves through basic rights like cross-examination.

More than 600 federal and state lawsuits have been filed by students accused of sexual misconduct since April 2011, when the Obama administration instituted its new policies, according to a database compiled by KC Johnson, a history professor at Brooklyn College, and the Foundation for Individual Rights in Education, a nonprofit civil liberties group.

Mr. Johnson said that there was now a body of case law supporting men’s due process claims, which could come into conflict with a return to Obama-era guidance.

In 2017, Columbia expelled Mr. Feibleman after a disciplinary panel found him guilty of sexual assault and harassment, including digital penetration and choking while the woman was incapable of giving consent, according to court papers.

Columbia declined to comment on those findings other than to say that it stood by them.

“While Columbia’s disciplinary findings remain unchanged, the parties have agreed to a confidential monetary settlement, and Mr. Feibleman has additionally been awarded the master of science degree in journalism for which he satisfied all requirements in 2017,” the university said in its statement, which was approved by lawyers for Columbia and Mr. Feibleman.

“Consistent with university policy,” the statement said, “Mr. Feibleman’s record has been updated to reflect that he is an alumnus in good standing with all associated rights and privileges.”

Ms. Lau asserted that people had to “read between the lines” to understand the full impact of the settlement. “You don’t pay somebody anything or award them a diploma if you think they are a rapist,” she said.

Through her lawyer, the woman in the case, who was not a defendant in Mr. Feibleman’s lawsuit, said she stood by her account of that night.

“Despite the aggressive and harrowing attempts to shame her through the court system, she has no regrets about coming forward with her complaint of sexual assault,” the woman’s lawyer, Iliana Konidaris, said.

“Nothing about his settlement changes what happened to my client, nor does it change the fact that her complaint was validated at every step of the university’s process, and she stands by her complaint.”

Ms. Konidaris said she saw Mr. Feibleman’s lawsuit, and others like it, as a form of retaliation. She noted that Mr. Feibleman had filed an earlier version of his complaint that included the names and photographs of the woman and student witnesses, which Columbia fought — successfully — to remove. “It was almost like the clickbait version of the federal complaint,” she said.

In an interview, Mr. Feibleman said he chose to sue under his own name, after discussing it with his parents and his fiancée, because he wanted to put the case behind him.

“Do you own this for the rest of your life, but make sure that the truth is out there?” he asked, “Or do you keep this some secret and hope or just wait, living looking over your shoulder, waiting for someone to do a career assassination at any given point?”

In the fall of 2016, as he began the one-year master’s degree program in journalism, Mr. Feibleman was 33, a former Marine from Salem, Ore. He enlisted at 17, served six months in Iraq and was discharged as a sergeant after five years; his accuser was 22 and a recent college graduate.

They were acquainted from class and began flirting at a journalism school reception, Mr. Feibleman said. They continued their tryst on the roof of a nearby Manhattan apartment building, where the woman scampered up a ladder to the sloped top of a water tower atop a 13-floor building.

She taunted Mr. Feibleman for cowering at the top of the ladder and for being too scared to stand up, saying, “I’m making a Marine scared,” according to court papers. The woman straddled Mr. Feibleman as he sat at the top of the ladder before “performing a reverse tumble roll off the edge of the water tower,” according to Mr. Feibleman’s court complaint, and catching the ladder below, he said in the interview.

Mr. Feibleman sees her daredevil behavior as evidence that she was in control of her faculties; Columbia saw it as evidence that she was intoxicated, according to court papers.

They ended up in her bedroom, where, at 1:37 a.m., Mr. Feibleman pressed the record button on his cellphone. (He also chronicled part of the evening, including on the water tower, on his Nikon D750 camera.)

Hitting the record button was “just a quick instinct,” bolstered by his training during journalism school “boot camp,” Mr. Feibleman said.

“They drill it into your head that New York is a one-party consent state as far as recording conversations,” he said, “and that you might need that to protect yourself at some point.” The tape, which Mr. Feibleman allowed The New York Times to review, is like a mash-up of a sex tape, a sting operation and a legal deposition.

They are talking about sex almost as soon as the tape begins. Her voice sounds drowsy, sometimes slightly slurred. When they are not whispering, his voice sounds clear and in control. He tells her that he wants her “so bad” but not “when you’re drunk.” She asks whether he finds her attractive, and he says she is “gorgeous.”

“Show me,” she says.

“Not tonight,” he says.

“In the morning, you’re going to thank me for leaving,” he says about eight minutes into the recording.

Minutes later, the tape takes a sudden turn in tone.

“Jesus Christ, OK — wait,” the woman says. “No. No. No. No. No. No. No. No, wait. No. What’s going on?”

Mr. Feibleman answers: “Um, you want me to have sex with you.”

Continuing to sound confused, she notices that she does not have any pants on and asks him, “Is that weird?”

He says she took them off.

“That sounds like a lie,” she says.

Soon after she says, “I need more information.”

Mr. Feibleman tells her what happened that night. She says she does not remember any of it.

At the end of the recording, as Mr. Feibleman is finally leaving, the woman says, “Please, please, Ben, I want you.” He asks her for a kiss good night and she says “No,” twice. He says good night, pets the cat on the way out, then signs off the audio saying, “That was a really dangerous situation.”

The woman made her complaint to Columbia that morning.

Mr. Feibleman, who married his fiancée, a lawyer, around the time he filed the lawsuit in 2019, has had only one real journalism assignment over the past four years. He says the case has consumed him.

“This is the last thing I think about when I go to bed,” he said. “It’s the first thing I think of in the morning.”

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