As Pomona College students filed solemnly toward the stage at the school’s commencement ceremony, one graduating senior accepted her diploma, then unfurled a banner and displayed it to the audience and the faculty on stage.
“A Rapist Is Among Us,” the banner proclaimed.
The boos and cheers that followed the woman as she returned to her seat typify the sharply divided sentiments, on campus and off, over a case of alleged sexual assault that has become the latest chapter in a national debate over what constitutes rape, and how far colleges can go in “trying” accusations against students.
A female junior charges, 2 1/2 years after the fact, that she was raped by a fellow student after an evening of drinking. She concedes that she never voiced an objection to having sex and has not explained why she waited so long to complain. She brought a formal complaint to the college, which scheduled a disciplinary hearing that could result in the expulsion of the accused man. He, in turn, filed a lawsuit to keep the college from holding the hearing.
The complex case, with its overtones of sexual miscommunication in a freewheeling sexual era, has divided both the campus and advocates of women’s rights. Several students at the Claremont Colleges, which include Pomona, held a series of protests on the woman’s behalf, saying her experience typifies the subtler forms of sexual assault. Someone scrawled “Dead Men Don’t Rape” on the school’s graffiti wall; a note with the same words was slipped under the accused man’s door. But a legal expert said she sees so many flaws in the accusation that she fears it could actually cause a backlash against the victims of sexual assaults.
“It provides ammunition to conservatives who would like to turn back the clock completely on date rape,” said USC law professor Susan Estrich, who specializes in gender law.
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. Times policy is not to identify alleged victims of rape. Both students refused to comment.
The case was to go before a disciplinary panel made up of 10 students a month ago, but was delayed indefinitely after the accused man’s legal challenge. The court stay of his hearing allowed him to graduate May 16 but left open the possibility that his degree could be revoked if the disciplinary panel finds him guilty.
Before the students left campus for the summer, there was fierce debate. Some women held a silent vigil to protest the ruling, although they said they were not responsible for the threatening graffiti and in fact painted over it. On another occasion, though, while painting feminist mottoes on the wall, they were harassed by a group of men screaming obscenities.
The lawsuit that fostered this painful rift during the last weeks of the semester has joined a growing number of cases that are putting 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?
Such questions have surfaced in similar cases 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, charging that the school violated his rights by excluding several defense witnesses from his hearing on the charge. Both cases are pending.
Because date rape is notoriously difficult to prosecute, schools have created rules that are broader and easier to apply than criminal codes, and that redefine rape and related conduct.
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.”
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, but never indicated any objection.
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 for reasons that neither she nor her friends will discuss. The accused man was summoned to appear before the disciplinary panel April 22, but filed a lawsuit against the school protesting the hearing. His lawsuit does not address the actual incident, just the college’s right to hold a hearing.
Two days before the man was to appear before a panel of students, a Superior Court judge stayed the hearing, allowing him to graduate, and set a new court date for next week to consider whether to allow the hearing at all and under what guidelines. The college asked the court to lift the injunction against the hearing, but the appeal was denied.
Although the events described in the female student’s statement may be a violation of the student code, USC’s 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 two 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.
Campus efforts to regulate sexual conduct have come under fire for what their critics say are rules so rigid as to lump social gaffes with violent assault. 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. Some students at Pomona College, though, 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.
“Consent at this college takes into account physical and psychological coercion,” said senior Eumi Lee, who participated in protests against the hearing’s delay. “It’s all part of the basic social contract. If these charges are true then he has violated that.”
Author Katie Roiphe, whose book, “The Morning After,” disputes many date rape claims, contending that they are merely instances of regretted sex, said such rules can set back feminism.
Student codes on sexual conduct, she said, “read like a Victorian guide to conduct. It has a strong streak of puritanism. . . . I also think from a feminist point of view it’s very dangerous to expand the definition of rape to include (lack of) explicit consent. Because the implication is that women are too gullible or too weak, or too innocent, too fragile to communicate on a very basic level.”
In the case of the accused Pomona student, “to call him a rapist, and to respond to this as a rape, is something that in both a legal and feminist point of view undermines the integrity of the rape charge,” Roiphe said.
But Diana Russell, author of “The Politics of Rape,” “Rape in Marriage” and other studies of sexual assault, says more explicit sexual rules are needed, particularly in the age of AIDS.
“There are an enormous amount of myths about rape,” said Russell, a professor emeritus at Mills College in Oakland. “Many men, particularly rapists, believe that women actually like rape. . . . Given how bad things are, (a code of conduct like Pomona College’s) is a way of protecting. Some women may not need it, but others do, so you make your rules for everybody.”
The school’s disciplinary process differs from criminal proceedings; the burden of proof is lighter, and students are not allowed representation by attorneys.
“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.”
Although the school says the procedure allows it to maintain high standards of student conduct, the accused student’s lawyer says it is unconstitutional. Attorney Howard Rosen 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?”
Rosen also said the tense climate on campus precludes any chance of a fair, impartial hearing.
“Because there have been death threats, because of the vigil, it’s impossible for him to get a fair hearing at this college,” Rosen said. “These students would not be allowed as jurors in a criminal trial.”
Los Angeles County Superior Court Judge Diane Wayne said at the April 20 hearing that she would decide in May whether the disciplinary hearing will proceed. She added, though, that school rules prohibiting the student from bringing an attorney to the college hearing are not 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 forgoing 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 charge 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.”