From: karl@skat.usc.edu (Karl Geiger)
Newsgroups: alt.feminism.individualism,alt.feminism
Subject: Date Rape Allegation Ignites a Furor at Pomona College
Followup-To: alt.feminism.individualism
Date: 21 May 1994 14:46:42 -0700
Organization: University of Southern California, Los Angeles, CA
Lines: 243
Sender: karl@skat.usc.edu
Message-ID: <2rlvg2$h5d@skat.usc.edu>
Keywords: date rape, college disciplinary procedures, lawsuit

           _The Los Angeles Times_, 21 May 1994, pg B1
            Copyright (c) 1994 _The Los Angeles Times_

      Date Rape Allegation Ignites a Furor at Pomona College

Education: A junior did not object to sex at the time, but accuses a
fellow student 2 1/2 years later.  A blocked hearing and a pending
lawsuit frame the issue -- Can the school act where a court might not?

                      by Deborah Sullivan

As Pomona College students filed solemnly toward the stage at the
school's graduation 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 helda silent vigil to protest the ruling, although
they said theywere not responsible for the threatening graffiti and in
fact painted over it.  On another occasion, though, while painting
feminist mottoes on the wal, they were harrassed 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 judgements 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 explelled 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 tha 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, whe she was
freshman and he was a sophomore, she said in a written statement to
the college's dsiciplinary 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 file 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, who 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, particulary 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,
particulary 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."

Althought the school says the procedure allows it to maintain high
standards of student conduct, the acccused 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," said Rosen.  "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, and
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."