California Penal Code Section 245.6: the Uncharged Crime?
| Publication year | 2015 |
| Author | By Lani L. Biafore, J.D., LL.M. |
By Lani L. Biafore, J.D., LL.M. *
Hazing is a pervasive problem in today's society. Some believe that it is limited to a small microcosm in society: the Fraternity World. That is simply not true. It is a total fallacy to believe that hazing is primarily a problem for fraternities and sororities. It is a problem as old as time due in part to human nature. Hazing involves one true axiom: the human desire to be included. "The desire to become accepted as part of a group is a powerful motivator that causes usually sane people to endure the unthinkable: beatings, eating foul substances and alcohol consumption at dangerous to fatal levels."1 Still, the best examples of hazing result from the antics of fraternity and sorority members on college campuses.2
Hazing is a societal problem. It exists in the elementary school systems, the higher educational systems, the social clubs, the workplaces, the retirement homes, and places of worship. Students, teachers, bandleaders, parents, clergy, attorneys, doctors, and business people all engage in forms of hazing. Hazing incidents have been documented in professional athletic teams, the military, religious organizations, as well as marching bands, professional schools, government employers, businesses, and other types of clubs and organizations. Reports of hazing activities in high schools are on the rise.3 Fifty-five (55%) percent of college students involved in clubs, teams, and organizations experience behavior that meets the various definitions of hazing. Hazing occurs in, but extends beyond, varsity athletics and Greek-letter organizations.4Greek-letter organizations are fraternities and sororities and professional societies that use traditional letters from the Greek alphabet for their names.
Hazing is generally defined as any activity expected of someone joining or participating in a group that humiliates, degrades, abuses, or endangers regardless of a person's willingness to participate. Even if a participant, either the hazer or the hazed, claims that no one was forced to partake, it is still considered hazing. Groupthink behavior, peer pressure, and coercion often play a role. Common hazing behaviors identified in a 2008 national hazing study by Elizabeth J. Allan and Mary Madden include, but are not limited to: high-risk drinking, physical battering, water intoxication, reckless driving, and dangerous stunts associated with gaining or maintaining membership in a student organization or athletic team.5
"Hazing is a problem from both men's and women's fraternal organizations. Physical hazing is more characteristic of men's fraternal organizations, while psychological hazing seems to be more prevalent among the women's organizations."6And, physical hazing exists as a serious problem for all men's fraternal organizations, irrespective of membership demographics.7
Hazing is an act of power and control over others: it is the victimization of others at its core. Hazing is premeditated, intentional, and not accidental. Hazing is abusive, degrading and often life-threatening.8 Forty-four states and the District of Columbia currently have anti-hazing statues.9 The states without hazing laws are: Alaska, Hawaii, Montana, New Mexico, South Dakota, and Wyoming.10 Many criminal statutes came about as a result of a tragic death of a young adult, such as California's "Matt's Law." And, most parents, civic leaders, and politicians support anti-hazing initiatives and their corresponding laws. It would be counterintuitive and politically irresponsible to do otherwise.
But hazing laws are not the definitive deterrent that the politicians, university administrators, or the aggrieved families hoped they would be for society. Oftentimes, hazing involves other criminal acts. Most often, the charge of hazing never appears on the criminal complaint, the criminal information, or the indictment. Other established criminal charges and enhancements are more appropriately charged, are easier to prove, and will result in lengthier sentences. Proof issues and/or proof problems abound in many cases. The punishments of other substantive charges fit the gravity of the resulting criminal conduct and appropriately address the deterrent, punishment, and retribution aspects of criminal charging.
The practice of hazing, subjecting individuals to abusive or humiliating ritual activities for initiation purposes, is traced back to the military in ancient Grecian times.11 The Spartans of ancient Greece are said to have had a time-honored ritual of hazing young male soldiers. The Spartans would publicly whip the younger soldiers to see who could endure the punishment the longest without screaming.12
Hazing in universities can be traced back to the Europe in the Middle Ages where it was known as "pennalism."13European universities in the Middle Ages adopted hazing practices such as upperclassmen forcing new students act as servants.14 Freshmen were considered uncivilized and before they could become regular members of the university they had to be "groomed."15 They were often physically abused, ridiculed, and forced to wear ridiculous clothing.16 "Pennalism" was nothing more than a system of exceptionally tyrannical "fagging" practiced by older students upon freshmen, especially in German Protestant universities in the seventeenth century. "Fagging" became popular in English boarding schools and the university system in eighteenth century in England.17 "Fagging" is similar to "pennalism" but differed in that the emphasis was on boring subservient tasks, though physical and verbal abuse did still occur just not as often.18
These practices were then brought to America.19 Harvard University has evidence of upperclassmen hazing freshmen as early as 1657.20 Hazing differs from "fagging" in its use of crude pranks instead of personal servitude.21 Until about one hundred years ago the hazing of freshmen was commonplace on university campuses in the United States.22
When the first fraternity was established in the United States, at the College of William and Mary, in 1776, evidence of its use of hazing rituals followed as soon as 1781.23 In the 1820s, college students were trying to redefine the college experience and looked to their European counterparts for ideas, ideals, and inspiration. Hazing has been commonly practiced in fraternities on university campuses since 1850.24As hazing faded as a general campus activity, it became solidly embedded in fraternities and sororities and over a period of time hazing became a major part of fraternity and sorority traditions.25
The fraternity movement grew in the American university system in the nineteenth and twentieth centuries. "The fraternity catered to the newly wealthy, giving them a reassuring sense of exclusiveness. It fostered the 'joiner' in an age and in an area where large numbers of adults were attracted to lodges. It formed a defensive rampart behind which the seeker of good fun might ignore the official values of the institution.... It became a breeding ground for conformist expectations such as would make for success in later life."26
A resurgence and intensification of hazing in fraternities began after World War II with the return of veterans who brought boot camp-style rituals of the military to campuses.27 The 1978 movie Animal House depicts the stereotypical hazing performed by fraternities at the time, including a scene depicting pledges being paddled.28Fraternity and sorority membership nearly doubled between 1980 and 1986, and with it reports of hazing also increased.29 Membership in fraternities and sororities continued to increase in the new millennium. Some reports suggest that membership levels in fraternities and sororities are at an all time high.
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"More than 725,000 college students are members of social Greek letter organizations. At some universities, Greek participation reaches as high as 80%. It's not just on campuses where a quarter to over half of students are members of a Greek organization (more than 120 schools). Even at colleges where the Greek system is small, it can still dominate the social scene and many students may feel the pressure to join a chapter. Often criticized for its exclusivity, Greek life is becoming an even greater indicator of social status and class."30
Many do not recognize or understand hazing when they see it. This is due to varying definitions of hazing, and the fact that hazing is an act that involves others acting collectively. Additionally, hazing thrives on bystander behavior. A bystander is a mere onlooker.31 Bystander behavior is when people fail or cannot respond to certain acts or events. Bystanders do not do anything to aid, help, or prevent hazing incidents. Bystander behavior prevents people from noticing hazing, recognizing hazing situations, interpreting hazing, or intervening in hazing events.
The following activities are considered hazing, especially in light of the coercive nature of the events: the forced or coerced consumption of alcohol; persons being yelled at or cursed at by other members of the team or group; sleep deprivation; the ingestion of vile substances; forced branding or tattooing; simulated sex acts; the required association with certain people and not others; the forced or coerced shaving of heads or other body parts; personal servitude as a precursor to membership; the infliction of violence on someone; persons who are whipped, kicked, or beaten prior to membership; the performance of mandatory sex acts; public nudity and streaking; the making of prank phone calls or the repeated harassment of others; the wearing of embarrassing clothing including dog collars; the deprivation of self of regular hygiene practices (e.g., brushing teeth, bathing/showering); the destruction or stealing of property; the cheating or helping of others cheat on an exam...
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