As Pomona College students file forward to receive their degrees at the school's commencement ceremony May 15, one graduating senior will be wondering whether the diploma is his to keep.
In March, a female student filed charges with the college disciplinary board, accusing the senior of date rape in an incident 2 1/2 years ago. Although she concedes that she never objected to having sex with him, she says she did not consent to it and was left traumatized.
No police report was ever filed in the Pomona College case; no criminal charges were ever brought against the man. For that reason, The Times is withholding his name. The woman is not identified because Times' policy is not to name victims of rape or alleged victims of rape. Both students refused to comment on the case.
Under school rules, the accusations pending before the college disciplinary board--made up of 10 students--could lead to expulsion. The accused student sued in court and won a stay of the board's hearing that allowed him to graduate but left open the possibility that his degree could be revoked if the disciplinary panel later finds him guilty.
The case has put college judicial procedures on trial, raising questions about the line between private discipline and public justice: How much authority do private colleges have to issue judgments on what might otherwise be criminal charges? To what extent can or should they regulate students' behavior? And can they deny a defendant at a disciplinary hearing an attorney and other rights guaranteed in the Constitution?
Questions such as those have been under debate at colleges around the country. A Yale University basketball player who was expelled last year for an alleged rape sued the school over its disciplinary procedures. And a student accused of rape at Valparaiso University in Indiana demanded $12 million in compensatory and punitive damages, claiming the school violated his rights by excluding several defense witnesses from his hearing on the charge. The cases are pending.
Even advocates of women's rights are split on the Pomona College case. A USC law professor who is an expert on gender law says she finds so many faults with the accusations that she fears the case will cause some people to discount the whole idea of date rape. But some students at the prestigious Claremont Colleges, which includes Pomona College, have held an ongoing vigil to protest the delay in the hearing on the charges, saying that the case typifies subtler forms of sexual assault.
Because date rape is notoriously difficult to prosecute, schools have created rules that are broader and easier to enforce than criminal codes.
"Our standard of proof is clear and consistent evidence," said Ann Quinley, the Pomona College dean of students. "It is possible for someone to be found guilty in a college hearing when they would not be in a court of law."
Howard Rosen, the accused student's attorney, said the college should not be deciding the case at all.
"They're not set up to deal with this charge, which is a very serious felony," Rosen said. "It's not the proper forum for that. . . . Do you really think if someone had been killed on this campus, this jury of juniors and seniors would convene to determine if it was premeditated or they acted in self-defense?"
The woman met the man at a Halloween party in 1991, when she was a freshman and he was a sophomore, she said in a written statement to the college's disciplinary panel. They were both drinking heavily, and at his suggestion they left the party for his room, where they began kissing and he undressed her.
She said she did not explicitly consent to have intercourse with him, but never objected.
Instead, she said, "I lay there in shock and scared and mentally frozen." The incident has troubled her ever since and always will, she said.
The next week, she expressed her shock and anger to him, and said he seemed sorry and sympathetic. Their occasional interactions afterward "could not have been more civil," she wrote.
More than two years later, though, she decided to bring disciplinary charges against him, although she did not explain the reason for the delay. The accused man was summoned to appear before the disciplinary panel on April 22, but filed a lawsuit against the school protesting the hearing.
On April 20 a Superior Court judge stayed the hearing until May 24--allowing him to graduate. Last Friday the college filed an appeal, which was denied Monday.
Los Angeles County Superior Court Judge Diane Wayne said she would decide then whether the hearing will proceed. She added, though, that school rules prohibiting the student from bringing an attorney to the college hearing aren't appropriate in this case.
"It is such a serious charge, and the circumstances are seriously open to two divergent interpretations," Wayne said. "He is entitled to an attorney."
The statute of limitations for rape is six years, Wayne noted, so the student conceivably could be charged after the hearing. And if the accused student speaks at the hearing, his testimony could be used against him in a criminal trial, she said. Although the student would not be forced to testify, Rosen said declining would limit his client's ability to defend himself.
"Everyone has the right not to self-incriminate," Rosen said. "He has the choice between waiving his privilege and giving his version of events at the disciplinary hearing or remaining silent and foregoing the right to defend himself."
But Pomona College's attorney Keith Johnson argued that the student code of conduct is independent of criminal law. And, he said, the claim that the hearing violates the student's due process rights "would apply to public, but not to private institutions."
Colleges "have a very long history dating back to the Middle Ages of autonomy in regulating their own environments," said Gary Pavela, an education lawyer and director of judicial programs at the University of Maryland. "It's particularly important in an allegation of violence that the college be able to determine for itself who can use its facilities."
While the events described in the female student's statement may be a violation of the student code, University of Southern California law professor Susan Estrich said it most likely would not hold up in criminal court as date rape or any other crime. And that sets a dangerous precedent that could hurt those accused of rape and those victimized by it, she said.
"Because the facts are so weak, because she waited 2 1/2 years, (because) there was no force used, (and) by her own statement she never clearly and unequivocally said no . . . to turn around and say to this young man you're not going to graduate from college is really unfair," Estrich said. "And it provides ammunition to conservatives who would like to turn back the clock completely on date rape."
Colleges recently have been crafting conduct codes that redefine rape and related conduct. At Antioch College in Ohio, a rule requiring students to obtain explicit mutual consent before exchanging even a single kiss became the butt of "Saturday Night Live" skits.
Pomona College's rules on sexual assault define consent according to the California penal code as "positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily . . . "
But it takes that a step further, adding; "Consent requires a clear, explicit agreement to engage in a specific activity."
Some students at Pomona College say their campus rule requiring explicit consent is not a joke, but an important safety measure.
"I think there's too much gray area, and the rules they're making reduce the gray area," said William Clarkson, a recent graduate. "I guess it would reduce the risk of date rape, which is a very real threat."
Students learn about that rule in a workshop the first week of their freshman year, Clarkson said.
"It's all part of the basic social contract," said senior Eumi Lee, who has participated in protests against the hearing's delay. "If these charges are true then he has violated that."