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."