Open-Source Warfare

When a Portland computer programmer's ex-wife accused him of sexual assault, ­­he made a federal case out of it.

For years, the world of writing computer code has seemed hostile to women. 

Female programmers complain about sexist presentations at tech conferences, harassment from fellow coders—and even sexual assaults. 

In 2011, tech leaders pressured conference organizers to write guidelines to prevent such behavior. Two of the most outspoken advocates were a Portland couple, well-known speakers at such conferences, Nóirín Plunkett and Michael Schwern. 

There's another big coding conference July 20-24 in Portland—the O'Reilly Open Source Convention, better known as OSCON. OSCON responded to calls for sexual misconduct guidelines from people such as Plunkett and Schwern, both of whom would often appear at the event.

They won't be speaking at OSCON this year. That's because they're waging their own war against each other over allegations he committed sexual violence against her.

Almost two years ago, Plunkett accused Schwern of choking and sexually assaulting her the day they mutually filed for divorce. Portland police arrested Schwern, and within days word of the incident was out on social media.

But prosecutors declined to pursue charges. Schwern fired back in January 2014 with a federal lawsuit alleging Plunkett defamed him. He's seeking $30 million.

WW doesn't typically disclose the names of victims of sexual violence, but Plunkett has publicly discussed the case on Twitter and a crowdfunding website to raise money for her defense

Plunkett and Schwern declined to be interviewed for this story.

The case has stunned Portland’s tech community and rippled throughout an industry already troubled by the scarcity of women in its ranks and the mistreatment of those who work as coders (“Where the Tech Is She?” WW, May 23, 2012). 

WW contacted more than a dozen local software developers for this story. Most declined to comment, and those who did asked that their names not be used, because they feared harming or angering people on either side of the conflict.

“It’s a toxic situation,” said a former Portland programmer who asked not to be named. 

Schwern's lawsuit is part of an increasingly high-profile trend: men accused of sexual attacks who respond by taking their alleged victims to court. 

This spring, National Football League players Jameis Winston and Ray McDonald both sued for defamation women who had accused them of rape. Locally, a male Reed College student expelled after an alleged sexual assault sued the school in April. He claimed the alleged victim had been part of a consensual three-way relationship, and his lawsuit seeks reinstatement and unspecified monetary damages.

Meg Garvin, who runs the National Crime Victim Law Institute at Lewis & Clark Law School, filed a legal brief last November urging that the federal court strike down Schwern's case. She tells WW his suit sends a dangerous message to victims.

"Reporting a sexual assault is already incredibly difficult," Garvin says. "If one of the things you're going to face when you come forward with your sexual assault is a lawsuit, that's going to have a chilling effect on survivors."

Plunkett, 30, is an adviser to the Ada Initiative, a San Francisco nonprofit that advocates for women in the open-source software industry. In July 2011, Plunkett wrote a blog post about being sexually assaulted at an Atlanta tech conference called ApacheCon and harassed at OSCON in Portland. Her post helped spur OSCON to write its code of conduct that year.

Schwern, 40, describes himself in court filings as "a leader for gender equity and a campaigner against sexual misconduct in the open-source software community."

That community is essentially the free speech movement of the tech world. Open-source programmers freely show the world the source code that makes their software work—believing that doing so makes for better products than those from companies like Microsoft that keep their code hidden. The most famous example may be Mozilla, the company that created the Firefox Web browser.

Schwern and Plunkett married in November 2011. According to federal court documents, Plunkett says Schwern sexually assaulted her on two separate occasions. She says he first assaulted her in November 2012. Nothing in the court documents suggests she called police, but they separated after the alleged attack. Schwern in court documents denies the 2012 assault allegation. He says the couple engaged in a relationship that included elements of dominant/submissive sexual play.

Ten months later, on Sept. 19, 2013, the couple filed for divorce in Multnomah County Circuit Court. That night, they met at Plunkett's Portland home for dinner—what Schwern describes in his lawsuit as "a final date together."

That's when the second alleged attack occurred that's now the basis of the ongoing court case.

Plunkett, court records say, alleged that Schwern "forced her to perform oral sex on him, had sexual intercourse with her despite her repeated objections, choked her with his hands, and penetrated her vaginally with the blade of a knife."

According to court records, Plunkett went to a hospital. Police booked Schwern on allegations of strangulation and harassment, both misdemeanors. He was released the next day.

The following day, Plunkett moved to Cambridge, Mass. She declined to proceed with charges, and prosecutors dropped the case in October 2013. Schwern claims he provided evidence to prosecutors that would exonerate him. (Portland police say reports related to Plunkett are under seal. The Multnomah County District Attorney's Office also said it was unable to release any documents, citing a passage in state law that makes it illegal to release court records that have been expunged.) In  December 2013, Plunkett obtained a restraining order against Schwern in Massachusetts.

Members of the Portland tech scene began posting on Twitter about the alleged attack in the days following Schwern’s arrest. The Ada Initiative, the equity-in-tech nonprofit, posted a link to Schwern’s arrest on its website and stated that the group “declines now and in future to work with Michael Schwern or to promote his work based on the information above.” 

In November 2013, Stumptown Syndicate—a nonprofit that runs another tech conference in Portland, the Open Source Bridge conference—announced Schwern was barred from attending its events

In his lawsuit, Schwern alleges that Plunkett told friends—falsely—that he had raped her, and that her untrue statements cost him opportunities at OSCON and Open Source Bridge. 

He also alleges that he's been blackballed from a wide swath of tech jobs at companies—from Mozilla to PuppetLabs in Portland—that work with the Ada Initiative to fight sexism.

Schwern's attorney, Bear Wilner-Nugent, says his client is innocent, and that Plunkett "chose to salt the earth" by spreading lies about him that she knew would tar him in the Portland tech world.

"She told them statements that were as injurious as possible," Wilner-Nugent says. "It's harmed his standing in communities where he's been a member his whole adult life."

Ada Initiative executive director Valerie Aurora declined to comment on this story. Christie Koehler, who runs Open Source Bridge and works for Mozilla, also declined to comment, and asked a WW reporter to leave this year's Open Source Bridge conference.

The case has worked its way through federal courts for more than a year, and so far neither a judge nor jury has weighed the merits of the case. Instead, Plunkett has argued she had a First Amendment right to speak about Schwern's arrest, which is a matter of public record.

A federal magistrate and judge have both rejected Plunkett's move to have the case tossed out, and those rulings are now before the U.S. Court of Appeals. 

Plunkett's attorney says Schwern's claims are without merit. "We fully expect to prevail on appeal," says her attorney, Dan Booth, "and vindicate the right to report."

Garvin, the Lewis & Clark law professor, says the case could establish a troubling precedent. She says Plunkett is being sued for doing nothing more than reporting that she had been a victim of an assault. 

“From our understanding of the case, literally all she did was report the crime to law enforcement,” Garvin says. “In order for the criminal justice system to work, people need to be able to report crimes.”