"am I My Brother's Keeper?": Reforming Criminal Hazing Laws Based on Assumption of Care

• Publication year: 2014

"Am I My Brother's Keeper?": Reforming Criminal Hazing Laws Based on Assumption of Care

Brandon W. Chamberlin

"AM I MY BROTHER'S KEEPER?"¹ : REFORMING CRIMINAL HAZING LAWS BASED ON ASSUMPTION OF CARE

Abstract

One hundred years ago, two states had criminal laws addressing collegiate hazing. Today, hazing is a crime in thirty-nine states. However, this flood of legislation has failed to stem the tide of hazing injuries and deaths. The current criminal law approach to hazing has failed because the claimed benefits of specialized hazing laws are illusory. Moreover, the rare cases in which hazing laws provide a benefit over general criminal statutes are the very cases in which the hazing laws are most vulnerable to legal challenge. The current approach also fails on policy grounds. A pure enforcement approach that does not engage with students' values and beliefs about hazing may have the unintended effect of entrenching pro-hazing norms. The creation of sweeping criminal liability also increases the danger of hazing by driving it further underground.

This Comment argues for jettisoning the current, failed approach to hazing and instead imposing a duty of mutual aid on members of collegiate student groups. Under this Comment's proposal, if a student becomes helpless as a result of a group activity and is unable to protect himself, other group members must protect him from injury until he is once again able to take care of himself. Criminal liability attaches when a member who knows of the other student's helplessness breaches the duty and an injury results.

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Introduction..............................................................................................927

I. The Factual Landscape of Collegiate Hazing.........................928

A. Scope of the Problem..................................................................928

1. Compiled Hazing Reports ....................................................929
2. Statistical Surveys of Hazing Behavior................................931

B. What Drives Hazing?.................................................................933
C. One Institutional Response to Hazing........................................935

II. Current Criminal Hazing Laws...................................................937

A. The Element of Harm .................................................................938
B. Types of Organizations and Individuals Subject to Liability......941
C. Applicable Context.....................................................................942
D. Severity of Offense......................................................................943
E. Consent Not Available as a Defense ..........................................943
F. Criminal Liability for Failing to Report Hazing........................944

III. The Case Against Current Criminal Hazing Laws..................944

A. General Criminal Statutes Already Address Injurious Hazing .. 945
B. Legal Vulnerabilities..................................................................949

1. Vagueness.............................................................................950
2. Failure-to-Report Provisions and the Right Against Self-Incrimination ........................................................................ 954

C. Policy Critiques..........................................................................955

1. Students' Social Norms Are More Powerful than Enforcement Strategies ......................................................... 956
2. Hazing Laws Increase Hazards by Driving Hazing Underground........................................................................957
3. Consent of Victims and Culpability of Perpetrators Is a Two-Way Street....................................................................959

IV. Omission Liability as an Alternate Framework.....................963

A. Hazing Fits Within Existing Law on Criminal Omission Liability ...................................................................................... 964
B. The Proposal .............................................................................. 967

1. A Helpless Student ................................................................ 968
2. A Responsible Member.........................................................968
3. Extent of the Duty.................................................................969
4. The Crime.............................................................................969

C. The Proposal Addresses the Defects in Current Hazing Laws ... 970
D. Limitations .................................................................................. 971

Conclusion..................................................................................................973

Statutory Appendix..................................................................................974

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Introduction

A car crash killed two sorority pledges.² The driver, a sleep-deprived fellow pledge, had been kept up most of the previous night by sorority activities and had been instructed by initiated sisters to drive to a group hair appointment.³ she was the only person charged with a crime and plead guilty to two misdemeanors.⁴

A nineteen-year-old pre-med student died of alcohol poisoning after a mock kidnapping by three pledges in his fraternity.⁵ Charged with first-degree hazing and unlawful dealings with a minor, the pledges were acquitted on all counts.⁶

Thirteen fraternity pledges were forced to do calisthenics and recite fraternity history while sitting in an ice bath.⁷ The three fraternity brothers charged with criminal hazing were acquitted.⁸ One juror remarked that the trial was "a waste of taxpayers' money."⁹

Over the past thirty years, there has been a dramatic increase in the number of criminal hazing statutes.¹⁰ Unfortunately, the current criminal law approach, with its focus on prohibition, has failed to solve the problem of collegiate hazing.¹¹ Hazing deaths continue unabated, prosecutions are rarely successful, and there remains significant social acceptance of hazing among college students. This Comment argues that the current criminal law framework for collegiate hazing should be dismantled, and in its place, a duty should be imposed on members of student groups to protect other students from injury to the extent that they are unable to protect themselves. If injury results due to a student's helpless state, criminal penalties should be imposed upon members whose actions contributed to the student's helpless state, who knew the student

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was helpless, and who failed to take reasonable steps to protect the student from injury.

Part I of this Comment provides background on the problem of collegiate hazing: its scope, its causes, and attempts by organizations to combat it. Part II analyzes the criminal prohibition of hazing by examining different state statutes. Part III lays out the case against the current system of criminal hazing laws as duplicative, vulnerable to legal challenge, and unsound. Finally, Part IV explains this Comment's proposal and argues that it successfully addresses the identified shortcomings of the current criminal law framework.

I. The Factual Landscape of Collegiate Hazing

This Part provides background on the practice of collegiate hazing. section A reviews attempts to quantify the extent of collegiate hazing and reveals that the prevalence of hazing may be overestimated. section B examines the ways in which students justify hazing and the academic literature on the causes of hazing. section C looks at the unintended consequences of the decision of the National Pan-Hellenic Council, the umbrella group for black Greek-letter organizations, to eliminate pledging.

A. Scope of the Problem

In order to sensibly discuss the problem of collegiate hazing, one should first attempt to quantify the problem. The available data suggests that collegiate hazing is extremely common—approximately half of all college students report experiencing behavior that may be considered hazing¹² —but perceptions of the number of hazing deaths are greatly inflated. since 1970, on average, three hazing deaths occur each year in the United States.¹³

As with other types of criminal activity,¹⁴ there are two approaches to measuring incidents of collegiate hazing: compiling reports of hazing incidents and surveying individuals about their experiences with hazing. Both

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approaches must contend with two primary problems: the lack of a generally accepted definition of hazing¹⁵ and the fact that most hazing is shrouded in secrecy.¹⁶

1. Compiled Hazing Reports

There is no governmental or private organization that compiles statistics of hazing incidents, injuries, and deaths.¹⁷ Instead, most of the literature on hazing relies on the work of journalism professor and anti-hazing activist Hank Nuwer,¹⁸ who has compiled reports of collegiate deaths due to hazing since 1990.¹⁹

Despite popular perception to the contrary, there is little evidence of a significant increase in hazing deaths in recent decades. Nuwer reports that from 1838 to 1969 there were thirty-nine collegiate hazing deaths.²⁰ There were twenty-six deaths in the 1970s, twenty-nine in the 1980s, twenty-eight in the 1990s, and thirty-five in the 2000s.²¹ To put deaths due to hazing in context, from 2005 to 2012 there were on average 19.25 murders each year at American colleges and universities.²²

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Unfortunately, Nuwer's work has been taken out of context by some commentators to support the proposition that the number of hazing deaths has increased exponentially since 1970. In his book Wrongs of Passage, Nuwer published a chronology of deaths due to "Hazing, Fraternal Alcohol Syndrome, Pledging, Fraternity-Related Accidents, and Other Miscellaneous Occurrences," which included many deaths not related to hazing, from causes such as falls, fires, automobile accidents, sports injuries, murders, and suicides.²³ Like...