It wasn’t the balancing act high above Manhattan atop a water tower, nor her demands that she be fucked and fucked right this very second, but the moment she suddenly said, “We’re in my apartment, right?” that made Ben Feibleman glad he hit “record.”
What you are about to read is based on court filings, a 30-minute recording, and an interview. The details matter in this case, so we left nothing out. Be forewarned, what you are about to read is explicit.
Last May, Feibleman filed a $25 million lawsuit against Columbia University in New York federal court for expulsion and gender discrimination under Title IX. A female classmate had accused him of sexual assault. He says she assaulted him, not the other way around. Despite the evidence, the school decided he was guilty. His case is now in the discovery phase. In all court filings, Feibleman’s accuser is called “Jane Doe.” Both sides are waiting for a former President Obama-appointed judge, Valerie Caproni, to rule on Columbia University’s motion to partially dismiss the lawsuit.
The ruling could come any day.
Now, simple defense is no longer enough for Feibleman. No. He wants to bring it all down.
The night in question was fairly routine.
It was a brisk Tuesday night in October 2016 when students gathered in the World Room on the third floor of Pulitzer Hall. Think high ceilings. Exquisite art. Huge picture windows overlooking the city’s Upper West Side and Harlem. Beer and wine flowed from an open bar. Nobody’s getting hammered yet, mind you. This was a graduate reception at a dignified Ivy. Not exactly ripe for sloppy hookups.
A woman plays a starring role in the space. The stained glass panel in turquoise and mossy green is called “Liberty of the World.” Columbia purchased her in 1955 for $1. Joseph Pulitzer handpicked her in 1908.
Nobody expected behavior like this at Columbia University, least of all Feibleman, a Marine veteran in his first semester at one of the nation’s most prestigious graduate journalism programs — a fertile recruiting ground for outlets like the New York Times, NBC and CNN. Price tag: $56K for a year or $100K for a fancier degree.
The 2017 graduate journalism class was already cozy. By September, students had already begun fucking. Now they were busy mingling. Deep into their writing classes. Frenetic stress buzzed through the room. Feibleman was struggling to keep up with the rigorous demands of his classes. His sub-section of 14 students came with its own chaos and ominous beginning. Their assigned professor, David Klatell, died of pancreatic cancer on their first day of class. Professors roamed the reception while students greased for story ideas and kissed a lot of ass to get business cards from Pulitzer Prize-winning guest speakers. It was a weekly ritual.
The large group shrunk until the few who remained were the types to believe Tuesday night itself was good enough reason to keep the party going.
Feibleman knew her a little from orientation, but they had never hung out. On this night, he seemed to hit the jackpot of hookups. At the reception, the complaint says, they sat on the floor and she asked him to put his head in her lap. She later sneaked kisses when her friends weren’t looking. She poured beer down his throat during a drinking game. Then she asked him to walk with her to the roof, where she climbed atop the water tower and beckoned him. She took off her top while he unclasped her bra. He sucked on her breasts. She called him a “pussy” for being afraid when they climbed the tower in the dark and when he wouldn’t go near the edge like she did.
He watched as she did a perfect backward roll off the side of the water tower. She taunted him about being a Marine who was afraid of heights. She straddled him on top of a ladder, then slapped him hard across the face and bit his lip. He hated the lip biting and told her to stop. None of this made him any less attracted to her, but according to him, he was steadily becoming more cautious.
She talked to him in a hot, vulgar way back at her apartment.
“Don’t you wanna fuck me?” she asked multiple times, on tape, in clear words. In fact, she affirmed her desire to have sex with her classmate no less than 29 times. She wanted him to fuck her and she wanted it, her word, “hard.” He wanted that, too. But something in his gut told him he better protect himself. And not with a condom.
After messing around for approximately 15 minutes — kissing, fingering, grinding, throat pressing (or “choking” as Columbia’s filing asserts) — she reiterated her desire for rough sex and he pumped the brakes. He thought of the squeaky bed, paper-thin walls and her roommate. When she refused to take no for an answer he pressed record.
In total, he claims she bit him three times, yanked his pants down, and grabbed his buttocks in an attempt to “force her mouth on his penis.”
Feibleman had already sensed that things might go sideways.
Some things made him nervous. When he first tried to leave, she started to cry. He couldn’t leave a woman in tears. He wanted to leave on positive terms. He liked her. He liked his classmates. He didn’t want to be known as the class scum.
Conversation took the form of a nightmarish loop. She demanded rough sex. He said no. She asked why not. He told her she’s too drunk, but later said he didn’t believe it. She had stopped drinking hours earlier, he recalls. He was just trying to employ what he describes in court filings as the “nuclear option,” which he believed would make the conversation stop. Again, he tried to leave. Again, she demanded that he stay.
“In the morning you’re going to thank me for not taking advantage of you,” Feibleman says on the recording. She didn’t agree. “Or I’m gonna apologize,” she replied.
After many of her pleas and more of his denials, she seemed to snap back into consciousness: “Oh, shit. Fuck…shit.”
And this: “Jesus Christ. Okay. Wait. No. No. No. No. No. No. No. No, wait. No. What’s going on?”
He asked if she’s okay.
After her confusion seemed to ease, she returned to her refrain: “I think you wanna fuck me.”
From the recording:
Him: I do want to fuck you now.
Her: So do it, muster the courage.
Him: You know how bad I wanna hold you down and fuck you hard?
Her: I want that.
Eventually, she asked him to “snuggle” her.
He agreed to snuggle her.
For the entirety of the 30-minute recording, she forbade him from leaving.
On tape, he can be heard cooing at her cat and tucking her into bed. He can also be heard declining her relentless demands for sex. He seemed to soothe her by telling her what he wanted to do to her at a later date. Some of his fantasies involved “tying her down and fucking her like a piece of meat…you’ve never been made into a little whore. Bent over and fucked. You ever been fucked like that?” Her response: “No I haven’t. Show me. Show me” His reply: “I’m not gonna show you tonight.”
At no point did she appreciate him saying no.
After a lot of begging and pleading, she asked, “Why not?”
He replied, “Because I’m going home to get sleep. And you’re going to bed to get sober.”
She continued trying to coax him: “I don’t get why you won’t do it now. I want to. Please. Please. Ben, I want you.”
She seemed upset by his refusals, at times questioning her own attractiveness.
“Here, Ben,” she said on the recording. “You don’t want to fuck me and that disappoints me.”
And this: “You think that I’m gross.”
To that, he replied, “I don’t think you’re gross at all. I think you’re gorgeous.”
Just after 2 a.m., Feibleman finally left.
It wasn’t even a day later when she accused him of sexual assault under the university’s Title IX statute. She didn’t seek medical attention or call the police.
“Ben tried to have sex with me,” she told her roommate after he left. She also told her boyfriend, who allegedly questioned how drunk she was. She called him an “asshole” and hung up. That morning she informed the school that Feibleman had sexually assaulted her.
Columbia University allegedly investigated the matter for six months. In June 2017, a panel of three administrators held a Kangaroo-style hearing in which they never used any evidence he provided or asked “Jane Doe” a single question about his side of the story. Neither of the two investigators on the case even showed up. In the end, the school withheld his degree, effectively ending his career in journalism.
At one point, they warned him not to utter a word about a medical report he obtained that addressed her level of capacity based on 700 photographs and the 30-minute recording. According to his legal complaint, a witness “Jane Doe” called to support her in Columbia’s case against him later called Feibleman and told him that she sometimes mixed pills and alcohol to get over a boyfriend. If he mentioned the report, Columbia authorities said they’d throw him out of the hearing and proceed without him.
Feibleman had seven minutes to speak in which he said, “Please please ask me about it,” referring to his allegations against her. School administrators declined. He had no voice — literally.
Afflicted with laryngitis that day, he sat there silently with his lawyer, who also wasn’t allowed to speak. In less than 24 hours, the panel declared him “responsible” for sexual assault “as the result of consensual non-intercourse sexual contact” he had with her prior to her demands for intercourse.
On the other hand, the school treated his allegations of sexual assault like a joke. Citing “insufficient evidence” and the notion that even if it happened, he would’ve liked it, the school declared that “Jane Doe” was “not responsible” for any alleged assaults on him. Columbia University let him graduate in May, but retroactively expelled him in June and ditched the diploma he’d spent the past year-and-half (and the rest of his GI Bill) earning.
Discovery is sticky. Neither side can agree on what should be handed over to the other camp.
Columbia University is demanding Feibleman’s military records. He served in the Marines for six years and left with an honorable discharge. His legal team is arguing against providing them. “They have not stopped asking for it even though it’s irrelevant to the claims of the lawsuit,” his lawyer Kimberly Lau tells me. “This shouldn’t be a fishing expedition.”
Feibleman’s legal team includes Warshaw Burstein’s Lau and James Figliozzi. Both lawyers have expertise in Title IX matters.
Lau says, meanwhile, that Columbia University is being less than forthright, fighting tooth and nail to hold on to relevant documents.
“Things that they’ve been giving are piecemeal and it’s not without repeated requests,” she said. “We’re going to need court intervention.”
In all previous Title IX cases, Columbia University has sided with the woman.
This time they’ve got a fighter.
“I think it’s very challenging to be sort of waiting for your life to be put back together,” Lau says of Feibleman’s state of mind. “Even with a decision on the motion, for better or worse, the case would still continue.”
“Hard to say [how the case is going],” she tells The Daily Caller. “A lot of things happen in discovery. We’re just diving in right now. It’s hard to say what’s going on for either party. I think you can already glean a lot from our discovery letter.”
“Jane Doe” reported the alleged rape to Columbia University officials on that fateful October morning. Feibleman continued taking classes, but was told to stay away from his accuser and leave if he saw her. A university investigator contacted him 49 days later.
Feibleman’s timing couldn’t be more unlucky.
As the #MeToo movement continues raging, Harvey Weinstein goes on trial for rape, and few people besides ex-Fox News anchor Megyn Kelly think to remind the world about due process.
“Some women lie,” she says in a recent video reaction to Bombshell, the Hollywood depiction of the fall of now dead Fox News Chairman Roger Ailes, who was sent packing after a high profile New York law firm investigated and hoards of women spilled secrets they’d been hiding for years. “Trust me, I practiced law for 10 years. Some people make it up. Most don’t but some do and guys deserve due process and they deserve skeptical assessment.”
In the case of these two Columbia University classmates, there’s an abundance of evidence the college plainly ignored. (RELATED: She Begged Him For Sex. He Refused. Now He’s Suing Columbia University)
By Feibleman’s account, except for her assaults on him, what happened between them was totally consensual.
New York is a one-party consent state, which means his recording is legal. His defense includes 700 pictures, 13 videos and 30 minutes of the aforementioned audio from the night in question.
Columbia investigators have heard all of this. They have the tapes too. As their verdict in Feibleman’s case should show, they simply didn’t care.
Feibleman is the first person to sue Columbia under Title IX without a pseudonym. He made sure his full name would be splattered all over court filings and in media stories like this one. The woman who claims he sexually assaulted her has always been allowed to go by “Jane Doe.”
Title IX is an old federal civil rights law that was passed in 1972 to protect women from being excluded from sports. Later it was used to address all forms of sexual harassment. It states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Feibleman’s court filings help tell his story: When he said no, she came unglued.
In the late evening and early morning hours of October 4-5, 2016, Mr. Feibleman and a classmate (hereafter referred to as “Complainant”) engaged in limited sexual contact including kissing, fondling and digital penetration.
Complainant then asked Mr. Feibleman to have full-on sexual intercourse with her while in her bedroom. When Mr. Feibleman declined, Complainant would not let Mr. Feibleman leave her bedroom and demanded that he have sex with her.
Complainant pleaded with Mr. Feibleman to have sex with her for thirty (30) minutes, during which time she made twenty-nine (29) separate requests for sex (e.g., “You don’t want to f–k me?”; “Please have sex with me.” ; “Please because I can’t let you go without it.” and so forth).
— Complaint, U.S. District Court, Southern District Of New York, filed July 24, 2019.
This is Feibleman’s recording. Start time: 1:37 a.m.
BEN: It’s all right.
HER: You don’t want to fuck me?
BEN: I do. I don’t want to fuck you when you’re drunk.
HER: I’m not drunk.
HER: You’re not drunk?
BEN: No, I’m not drunk enough to fuck you when you’re drunk. (Note: In a court filing, Feibleman’s team says he used this “nuclear option” to shut down any possibility of sex.)
HER: I’m not that drunk.
HER: You actually wanna fuck me?
BEN: Oh my god, so bad.
HER: Why is that?
BEN: Well, because you’re beautiful. Because I’ve wanted you since the moment I saw you.
HER: No you haven’t. You’re a liar.
BEN: What am I lying about?
HER: You don’t want me. You think that I’m gross.
BEN: I don’t think you’re gross at all.
HER: No, you’re lying.
BEN: I think you’re gorgeous.
HER: No, you don’t. You’re just being nice. Because we’re here.
BEN: I’m never not — I’m never just nice with things like that. I’m actually quite a dick.
HER: I don’t think that you’re a dick. I think that you’re a nice person and that you’re masquerading.
BEN: Yeah? What am I masquerading?
HER: You’re not a dick.
BEN: You know my secret. I’m not actually a dick.
HER: No, I know that. You’re a good person.
HER: Yes, you do.
BEN: Oh yeah. Yeah. Yeah, I do. I do.
HER: Do you trust me?
BEN: Yeah, I trust you.
BEN: Because, I don’t know. I felt like, like, well, why shouldn’t I trust you?
HER: You don’t trust everybody, though.
BEN: No, I don’t trust everybody.
HER: Do you trust half people?
BEN: Half people? Or, half of people?
BEN: Hmm…I’ve often been quick to trust, and it leads to embarrassment or something like that. It doesn’t mean that I have this big thing about betrayal, it’s just about, kind of like, if I open up around people sometimes I just end up embarrassing myself.
BEN: How are you, though? Are you okay?
HER: Mmhmm … you don’t want to fuck me?
BEN: I want to fuck you real bad.
HER: [Inaudible] I don’t get why you stopped.
BEN: I stopped because you’re tired and you’ve been drinking and [roommate] knows that too.
HER: I’m here.
BEN: I know. But if you were sober and inviting me into your room, and [roommate] went to bed…
HER: You’re in my room, aren’t you?
BEN: I am…
BEN: When our mutual friends ask if you got home safe and then ask [Roommate] …
HER: I’m here safe.
BEN: Yeah, you’re home safe, but that kind of implies, “Ben, don’t fuck her, she’s not sober.”
HER: Mmmm…even though you want to.
BEN: Yes, I want to.
BEN: And I know exactly how I’m going to.
HER: Tell me. Tell me.
BEN: I’m gonna be in command of you.
BEN: Yeah. You come to my room. You lay down on my bed and you’ll belong to me until I’m finished with you.
HER: Show me.
BEN: Show you?
BEN: Not tonight.
HER: Not tonight?
BEN: If you really want me, you’re gonna want me tomorrow.
HER: Show me, please.
BEN: I can’t show you.
HER: Yes, you can.
BEN: Not tonight I can’t.
HER: I know you want to.
BEN: You’ve already felt me. You know how bad I want you.
HER: You know you want it.
BEN: I know I want you, too.
HER: Show me.
BEN: Show you?
HER: Yeah. (Inaudible)
BEN: We’d go into your room — into my room. And I’d lay you down. Actually, no, I’d sit you down on the bed. And you’d sit up, looking at me. And I walk up. Your legs are open. And I stand between your legs, and you look up at me, and I’m looking down at you. And I touch your face, just like this. But I’m also controlling you. …And you feel it. (Inaudible) when I bend down, to give you a kiss. A taste of things to come. And I grab your hair. I’ll make it hurt, just a little, just enough so you know I’m in charge. And I’ll touch you. And I’ll explore you to feel how wet you are.
BEN: And it will go from there, but it will have to be there, and it will have to be then. It can’t be tonight. No matter how bad we want each other. God, you think I haven’t thought about you?
BEN: You really think I haven’t been thinking about you. You’re wrong. You’re wrong.
BEN: Well, haven’t you found your aggressive streak! Is this the same one that slapped me and told me…
BEN: …told me I’m a jackass, or whatever you said. Nope! Nope! (Inaudible) come to my bed and I’ll tie you up completely.
BEN: Try new things (inaudible) actually feel each other. I’m going to go now.
BEN: Yes, I’m gonna go now.
HER: Why? I know you don’t want to.
BEN: In the morning you’re gonna thank me for leaving.
HER: I know you don’t wanna leave.
BEN: I know you know I don’t wanna. I know you know how I want you, but I’m gonna be gentleman enough to make sure that when we finally fuck you …
HER: (Crosstalk) I don’t give a shit about…
BEN: (Crosstalk) that when I finally fuck you, you won’t be too tired, and you won’t be drunk.
HER: I’m obviously not too tired. You know what I want. I’m here. You know what I want.
BEN: I know what you want.
HER: (Crosstalk) Yeah you do.
BEN: You want what I want.
HER: I know what you want. We’re together.
HER: I know. I know what you want.
BEN: What do I want?
HER: You want to fuck me.
BEN: Yeah, that’s what I want.
BEN: Yes, hard. Rough.
HER: Yeah, rough. Oh…
BEN: It’s gonna have to wait.
HER: No. You don’t want to wait.
BEN: I know I don’t want to wait.
BEN: If I’m gonna fuck you I’m gonna come with a full battery of energy.
BEN: Because I’m not gonna stop for awhile.
HER: Yeah? If that’s what you want.
BEN: I’d be doing you a disservice to fuck you now. To fuck you here.
HER: No, it wouldn’t be.
BEN: Is that what you want?
HER: If that’s what you want. You just let me know.
BEN: Fuck! You stroking my cock like this.
HER: I don’t know what you want.
BEN: You know that I desire you.
HER: I just — I just —
BEN: You want me inside you?
BEN: I’m gonna have to leave you now.
HER: You don’t want to.
BEN: It’ll be better if we wait. So much better. ‘Cause I’ll be able to fuck you harder if I know you want me sober, and I don’t know —
HER: You know that I’m right here.
BEN: You being right here isn’t enough.
HER: You know that I like hard sex.
BEN: I know that you like hard sex.
HER: You know that I like rough sex.
HER: Which is what you like.
BEN: Yeah, that’s what I like — I wanna give you that.
HER: Yeah, show me. I know you wanna show me.
BEN: I’ll fuck you better in my bed.
BEN: I have to get up early. Let me tuck you in, get you a glass of water, alright? You want some water? I’m gonna get you some anyways. I’ll let myself out, ok?
HER: No. I can’t let you go. It’s gonna be shit.
BEN: It’s gonna be shit?
HER: Yeah. Please have sex with me. Please. I know you want to.
BEN: I know you know I want to.
HER: Please because I can’t let you go without it. Please. I know you want to.
BEN: I wanna do it right.
HER: I’m here. It’s right. You’re tucking me in and stuff.
BEN: You being here is not right enough. You’re gonna have to come to my place.
HER: No. I’m an independent lady, so come to my place. Please. Please?
BEN: I have to go. I have to get up early.
HER: I do, too.
BEN: I have to go home and jerk off, thinking of you.
HER: Or — or
BEN: There is no “or.” This is what must be done.
BEN: Bed time.
BEN: Give me a kiss good night.
HER: Here, Ben. You don’t want to fuck me and that disappoints me. I’m here, in my state of mind.
BEN: I know you are.
HER: Fuck you.
HER: You hate me.
BEN: I wouldn’t say that. I have to go home.
HER: Fuck. Aww, fucks….fuck.
BEN: Are you okay?
HER: Oh, shit. Fuck…Oh, shit.
HER: No, wait.
BEN: I need to go.
HER: I know that you need to go to sleep but — no, aw, fuck. Jesus Christ.
BEN: It’s more than that.
HER: Oh Christ!
BEN: I can’t have these moments, if I’m in the middle of fucking you where you suddenly realize where you are.
HER: Jesus Christ. Okay. Wait. No. No. No. No. No. No. No. No, wait. No. What’s going on?
BEN: Um…you want me to have sex with you.
HER: Oh, fuck. Okay.
BEN: Can I go home?
HER: No. Wait, no.
BEN: I wanna make sure you’re okay.
HER: Oh, fuck.
BEN: And I do —
HER: We’re in my apartment, right?
HER: Aw, fuck.
BEN: So glad we’re not having this conversation at my apartment.
HER/BEN: [Hearty laughter.]
BEN: That would be bad.
HER: Wait, come snuggle. I love snuggling.
BEN: Okay. That I can do for a few minutes.
HER: Hey, Ben! Wait, I don’t have any pants on. Is that weird?
BEN: That’s fine. You’re beautiful.
HER: Awww! I think you’re beautiful too.
BEN: Awww. I like this — I like this.
HER: Wait, why?
BEN: ‘Cause you were realllllly tired. It’s like you kind of snapped out of it.
HER: I — uh, I think I just woke up. How long — I don’t want to sound rude. How long have you been here?
BEN: Uh — pfff…in this bed?
HER: Oh, my God.
BEN: Maybe, half an hour? And hanging out with out there for an hour with [Roommate].
HER: Oh, my God.
BEN: And she went to bed knowing that you were drunk, and I don’t want her to think I fucked you when you were drunk. I don’t want to fuck you when you’re drunk.
BEN: I know you’re a bad girl deep down… And I want to get to know [you] better. Do you know how to masturbate?
BEN: I’ll teach you. I will. I’ll show you, just not tonight.
HER: Why not?
BEN: Because I’m going home …to get sleep. And you’re going to bed to get sober. Then I’m gonna do my work, and we’re both gonna live our little lives and there’ll be a moment when this happens again and the circumstances were right. You’ll be in my bed, tied down. Candles. Music. And I will take you…entirely.
HER: I don’t get why you won’t do it now. I want to. Please. Please. Ben, I want you.
BEN: Good night. Give me a kiss good night.
BEN: Give me a kiss good night.
HER: No. (Inaudible)
BEN: Okay. Good night, [Complainant].
BEN: Hey [cat’s name]! Hey, buddy. Come here, buddy. You have such a big fur ball. He’s so beautiful. Awww. he’s sweet, too. You give me a kiss good night? You okay? Oh, my God, he’s purring!
BEN: Good night… Good night, buddy. See you soon.
BEN: Ok, it’s now 2:10 a.m. Fuck! I gotta get up early. And I’m walking 17 around the corner to my apartment, which is apparently two blocks away. And that was a really dangerous situation, and I’m going to message, uh, [Roommate] now and let her know that, ‘hey, I just left, and nothing happened, we made out a bit and, ugh, I left.’ All right. So that’s it.
At the crux of Columbia University’s ruling is timing and the woman’s alleged incoherence.
The school maintains all sexual activity that transpired before the recording is tantamount to what they are calling “sexual assault.” In their eyes, everything after doesn’t matter.
There has been legal banter among the attorneys about the school dangling his diploma as part of a settlement and essentially hugging it out.
Feibleman isn’t interested in settling. He wants a trial.
Columbia University strongly maintains Feibleman’s guilt and denies getting the Title IX law wrong. They claim Feibleman knew what he was doing and that his recording actually shows a woman “drifting in and out of consciousness.”
As its name suggests, an ‘erroneous claim” under Title IX can survive … only if plaintiff plausibly alleges that a university actually reached the wrong result in adjudicating a Title IX complaint (and did so as the result of gender bias). Here, Plaintiff contends that the University erred in concluding that he sexually and assaulted Jane Doe on October 4-5, 2016. Because he does not dispute that he digitally penetrated and choked Doe on the night in question, Plaintiff rests his case primarily on the premise that Doe was able to consent at the time.
But that premise is squarely contradicted by a disturbing 30-minute audio recording the Plaintiff created just minutes after the act in question. On that recording, there are prolonged periods in which Doe’s speech is slurred and incomprehensible. Plaintiff and Doe both note that there are prolonged periods where Doe drifts in and out of consciousness. Doe repeatedly states she does not understand where she is, how she got there, or how long she had been there; and Doe evinces clear memory impairment. …Plaintiff states at various points he’s not willing to have vaginal intercourse with Doe because of her severe inebriation.
…Plaintiff, in turn, refused to have vaginal intercourse because he worried that she would snap in and out of consciousness while he was inside her. Plaintiff also told Doe that she was drunk no fewer than twelve times in thirty minutes, each time in direct response to her own statements and actions. Plaintiff clearly knew what he was doing. For all his complaints about the University’s investigatory process, the bottom line is that Doe plainly could not consent when he digitally penetrated and choked her a few minutes before hitting ‘record.’
— Court Filing, May, 2019
Columbia is asking that certain parts of the lawsuit be thrown out: “Plaintiff’s contract and quasi-contract claims (Counts III-VI) should be dismissed because he fails to identify any specific promises that the University breached in its Title IX or other procedures.”
A big question from Columbia’s lawyers: Why didn’t he just leave Jane Doe’s room?
Here’s what Columbia’s filing has to say: “Plaintiff alleges that he did so because he ‘felt trapped’ in Doe’s room, though he does not explain why he could not get up and leave (which he did without any apparent difficulty after recording Doe for 30 minutes).”
Here’s what Feibleman’s filing has to say: “Columbia presents two outrageous statements when asserting that Plaintiffs decision to record his interaction with Complainant is proof of her incapacitation – [Plaintiff] does not explain why he could not get up and leave and [Plaintiff] does not explain why he decided to remain in [Complainant]’s bedroom alone. In one instance where Plaintiff tried to leave, Complainant forcibly removed his pants to expose his penis and tried to place his penis in her mouth against his will.”
Feibleman’s legal team argues that Columbia’s question — “Why didn’t just leave?” — is the basis of the gender discrimination portion of the lawsuit.
Columbia disgracefully and glibly raises these points in an effort to silence Plaintiff, a former student who maintains that Columbia failed to adequately respond to his own physical and sexual assault by Complainant.
Surely, Columbia would not ask a female student who was physically and sexually assaulted by a male student, ‘Why didn’t you just leave?’ Nor would Columbia tell a female student who claimed to suffer sexual harassment and sexual assault that her abuser was not responsible because he could not remember doing it and, in any event, the female student ‘would have liked it.’ If there was any question regarding the anti-male gender bias present at Columbia, these comments confirm its existence.
— Court filing, Ben Feibleman’s legal team.
About that audio recording …
Feibleman’s lawyers argue that their client couldn’t possibly have known the client had blacked out — if indeed that is what happened.
On the audio recording central to Columbia’s Motion, Complainant acknowledged that she was with Plaintiff(who), in her bedroom (where), at night when they both need to get up early the next day (when), and repeatedly begged for rough, hard sex because she enjoys that type of sex.
Even if Complainant’s mental state were impacted by her consumption of alcohol, Plaintiff could not have known based on Complainant’s behavior, which failed to provide objective and reasonably apparent signs of incapacitation.
As Columbia’s Gender-Based Misconduct Policy notes, a person may experience a ‘blackout’ and forget entire or partial events despite appearing to function normally and expressing an interest in engaging in sexual activity.
…In the instant matter, Columbia asserts that Plaintiff should have been aware of alleged invisible indicators of incapacitation, such as Complainant’s later memory failure, in the moment despite a lack of outward indicators of incapacitation. However, without objective and reasonably apparent signs of incapacitation, there can be no finding of gender- based misconduct.
— Court filing, Ben Feibleman’s legal team.
Legal might in this case is absurdly lopsided. Columbia University has a goliath team of eight attorneys. Feibleman, just two.
The bills to get to a trial are monumental.
Columbia’s imposing legal team includes hotshot lawyer Roberta Kaplan, who was named a top Hollywood attorney by The Hollywood Reporter, among many, many other accolades. Kaplan, who earned her law degree from Columbia University and now teaches there, famously represented lesbian Edith Winsdor pro-bono, a case that overturned the Defense of Marriage Act. She also took on a Jeffrey Epstein accuser as a client around the same time that she tried to get Feibleman’s case against Columbia University dismissed.
Kaplan co-founded the TIME’S UP Legal Fund, a group that links sexual harassment victims with attorneys and publicity. In November, 2019, she filed a defamation lawsuit for longtime Elle advice columnist E. Jean Carroll, who accused President Trump of sexually assaulting her in a Bergdorf Goodman dressing room in the 90s. Trump denied the allegation or even knowing Carroll.
Another client: Guardian‘s Moira Donegan, creator of the “Shitty Media Men List,” who was sued for libel in late 2018 by New Orleans writer Stephen Elliott for his inclusion on the list. Elliott, who wrote The Adderall Diaries, is suing Donegan and other “Jane Doe” contributors, for $1.5 million. The list accused him of rape. Donegan’s side moved to dismiss in June. The case awaits a judge’s ruling.
Kaplan says Donegan is “not trying to get men in trouble” but is using her First Amendment rights to protect women. Therefore, she argues, her client can’t be sued.
Columbia’s legal team in the Feibleman case also includes a few lawyers from Paul, Weiss, Rifkind, Wharton, & Garrison, LLP, the outside law firm that Fox News hired to investigate the allegations that toppled Roger Ailes. Coincidentally, it was Megyn Kelly who demanded that Fox News lead an independent investigation after ex-anchor Gretchen Carlson filed her $20 million sexual harassment lawsuit against Ailes.
The Daily Caller reached out to “Jane Doe’s” current attorney Olympias Iliana Konidaris. “Jane Doe” retained her to protect her privacy. Konidaris had “no comment” at this time. She said she would pass along a request to “Jane Doe” in case she wants to respond. A request for comment was also made to Columbia University’s head attorney Roberta Kaplan, who did not return my phone call.
Columbia University court filings in Feibleman’s case include one first-person account from “Jane Doe,” who was initially represented pro-bono by celebrity wife Alexi Myers, the spouse of CBS late-night talk show host Seth Myers.
Feibleman’s accuser graduated from Columbia’s graduate journalism program in 2017. She makes several points in her statement to the court.
The woman who earned a master’s in journalism fears being approached by journalists.
1. She fears for her safety and well-being. She says a New York Post reporter contacted her on Facebook and LinkedIn. When she did not respond, a reporter showed up at her door. “The media pressure of this case alone will have a devastating impact on my mental health, particularly if I am identified by name in these proceedings,” she says.
2. She’s in treatment. For two years, she has been undergoing treatment for anxiety and PTSD related to being “sexually assaulted” in 2016.
3. She is afraid when she sees herself in media stories. “Several threatening comments have already been made about me on [sic] news stories published about this case, and a reporter has been able to find me at my home. I continue to be afraid for my safety.”
4. She worries about her reputation. “I am also concerned about the permanent harm Mr. Feibleman’s complaint will have on my reputation, career, and future employment prospects, especially given the one-sided, false narrative that he has aggressively sought to promote through this Court. …I am devastated by the thought that my hard work and my contributions to the Columbia community may be destroyed by Mr. Feibleman’s calculated and retaliatory efforts to drag my name through the mud.”
5. She stands by her complaint against Feibleman. “I brought the complaint of sexual assault against Mr. Feibleman to Columbia’s Title IX Office in good faith. I complied with the process and was provided pro bono counsel.”
6. She claims she has kept quiet about the alleged assault. “Despite the fact that there were several witnesses to the events who participated in the university proceedings, I spoke with very few friends or individuals about Mr. Feibleman and the fact that he sexually assaulted me. I did not identify him or discuss the case openly on social media.” (Note: In June, 2019, Feibleman’s attorneys filed a sworn statement from a Columbia University classmate saying he or she was present at a December, 2016 happy hour for the Society of Professional Journalists Columbia Chapter at a beer parlor near campus. The witness heard “Jane Doe” telling guests that Feibleman “could not be there.” A few days later, at the school’s winter formal, Feibleman left early because “Jane Doe” was there. At the door, Feibleman asked the classmate if “Jane Doe” had told the person about the alleged incident. The classmate replied, “She’s been telling everybody.”)
7. She worries that Feibleman’s attorneys will play his recording in court. “During the Title IX investigation, I learned through my attorney, Ms. Meyers, that Mr. Feibleman threatened not only to bring suit and drag my name through the mud, but to play the recording of the sexual assault in the courtroom. I worry that Mr. Feibleman intends to continue to retaliate against me, to threaten my physical and mental health, and to humiliate me throughout the course of this litigation.”
Feibleman knows he’s in a steep battle.
After all, Columbia’s recent history with rape allegations has always benefited the woman.
In 2014, a student named Emma Sulkowitz (a.k.a. “Mattress Girl” because she dragged a mattress around campus to broadcast her alleged rape) accused classmate Paul Nungesser of the sex crime. Despite a Facebook exchange in which she told him to “fuck her in the but[sic],” and other graphic details, Columbia sided with Sulkowitz.
Similar to Feibleman’s case, his attorneys used Facebook messages to paint a portrait of a woman who was suffering from unrequited love. She went from obsession to hatred to a rape accusation.
Columbia made it all go away by settling in 2017. (The Text Of The Mattress Girl Lawsuit May Shock You)
While rape allegations at Columbia favor the woman, the social scene at the school is a straight man’s paradise. Feibleman’s 2017 class at Columbia had 275 students and 75 percent was female.
“We were friendly,” Feibleman recalls of “Jane Doe,” but everyone knew she had a boyfriend. He later engaged her and her friends at the reception to chat about story ideas. He had a beer. The woman had allegedly been telling friends she wanted to break things off with her boyfriend.
Feibleman and the woman began what his court filing describes as “hours-long” flirting, which led to more drinking and a game in which she shouted “Beer!” and aggressively poured it into his mouth, a hookup and an eventual sexual assault accusation. He created a selfie video depicting the drinking game, if you can call it that, which he gave to Columbia University investigators.
Feibleman has never worked in journalism. But here’s a guy who seems like he’d fit like a glove at Vice. Apart from doing a freelance project in the jungles of El Salvador and one interview for NPR, he’s a self-described “dutiful house husband” who cares for two cats and sees a therapist for the PTSD associated with the case. Sounds of cats meowing can be heard on the phone. Family pays his exorbitant legal fees.
“Yeah, I want to work,” he tells me. “The reality is you can’t move forward with something like this hanging over your head.”
He has other admissions: “There have been many times where my wife and I are alone and she’ll say something that triggers a flashback. Suddenly the girl is in the room with us.”
Like “Jane Doe,” therapy is a routine part of Feibleman’s life.
“It’s a wounding experience to your soul,” he tells me of the rape accusation. “You can’t be obsessed or constantly want to talk about it. My wife supports me in so many ways. And the only thing she asks is that it not be the only thing we talk about. It’s taken us a long time to find the right boundaries, and weekly therapy is a big component of that.”
His close friends worry about him.
They remind him that there will be a life when this is over.
“However it resolves itself, life is long. I want to make sure he has a life after this no matter how it works out,” Feibleman’s close friend Guy Tower tells me in an interview. “There needs to be some future.”
Tower graduated from Columbia University, but their paths did not cross until after the accusation.
Tower has a lot to say about Feibleman.
“It’s very easy to tag things on him because he’s an odd duck,” Tower tells me. “He is almost pathologically fearless. He is very social. He’s got a very big personality. He pushes noses out of joint. He’s the sort of person …he literally has …he will throw himself off a bungee or wear a tutu to a formal dress party. To people who don’t know him he seems quite odd.”
Tower continues expounding on his friend. “He’s a boisterous ex-Marine. He pushes you out of your comfort zones. You bring him to the party, and he will get other people talking to each other. He doesn’t have that gene that — whatever it is — that makes people shy. He is highly respectful, what I would consider a modern progressive. In situations where somebody was infringing on the privacy of a woman in his presence, I usually see him be the first to jump up and speak up.”
Feibleman enlisted in the Marines in February 2001. He completed stints in Liberia, Malta and Iraq after being recruited into the Marine Security Guard Program, which trains Marines to protect U.S. embassies abroad. While other embassy Marines were clamoring for assignments in Paris, Rome and Tokyo, friends advised him to pick locations he wouldn’t want to travel to with family. “Send me to the biggest shithole on the planet,” he wrote in a 2014 blog post. The same message he says he sent his superiors verbatim. They chose Liberia. Once that was completed, they sent him to Malta. But he grew intensely bored and requested Iraq. The Marines obliged. He was assigned to protect then-President George W. Bush when he traveled abroad for a 10-day D-Day anniversary in 2004.
Feibleman left the military in 2006. A look on his Instagram feed shows pictures with former President George W. Bush, former Sec. of State Colin Powell, Condoleeza Rice and then-Sen. Joe Biden (D-Delaware). In 2011, he earned an undergraduate degree from Columbia, graduating cum laude.
He looks at his situation with a raw sense of reality.
“If this happened to me at 23 I wouldn’t be alive today — I’m quite sure of it,” he tells me.
He won’t expand on this but like so many veterans, he was diagnosed with PTSD when he returned from Iraq in 2006. Veteran suicide and depression hadn’t received the media attention it has today.
Feibleman is not a choirboy.
On his personal website, BenFeibleman.com, he shares lengthy stories about his life with complete reckless abandon. In one story, his idea of a party favor is a “bag of dicks.” In another, he cleared the air path of a choking, vomiting woman in India.
Feibleman’s Instagram feed is another wild ride. The pictures are artistic snapshots of his life. It’s a love affair with cats, his wife and then there’s a lone picture of him in a tutu at Burning Man.
Stories of classmates who still call him a rapist behind his back are embedded in his mind.
He says this about his accuser: “I’ve been in a lot of dangerous situations, both in and out of the Marines and I’m confident in my ability to handle them. But it doesn’t mean I wasn’t afraid of her.”