The Litigation Landscape of Fraternity and Sorority Hazing: Criminal and Civil Liability

Publication year2021
CitationVol. 99

99 Nebraska L. Rev. 649. The Litigation Landscape of Fraternity and Sorority Hazing: Criminal and Civil Liability

The Litigation Landscape of Fraternity and Sorority Hazing: Criminal and Civil Liability


Gregory S. Parks and [*]
Elizabeth Grindell [**]


TABLE OF CONTENTS


I. Introduction .......................................... 650


II. Criminal Liability ..................................... 650
A. Member Liability .................................. 651
B. Organizational Liability: High Managerial Agents. . 654
C. Development of Criminal Statutes on Hazing ...... 656


III. Civil Liability ......................................... 659
A. Member Liability .................................. 659
B. Chapter Liability .................................. 664
C. Housing Corporation Issues ....................... 666
D. National Organization Liability .................... 669
1. Agency and Respondeat Superior ............... 669
2. Alter Ego Theory .............................. 677
3. Duty to Innovate?: Liability for Artificially Low Standards ..................................... 679
4. Negligent Hiring, Supervision, Training, and Retention ...................................... 681
E. University Liability ............................... 686
1. Landowner Liability ........................... 686
2. Custodial Liability ............................. 688
3. Assumption of a Duty .......................... 690
4. Vicarious Liability ............................. 691
5. University Staff Liability ...................... 693


IV. Conclusion ............................................ 696


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I. INTRODUCTION

Hazing-"the act of placing another person in a ridiculous, humiliating, or disconcerting position as part of an initiation process"-has caused injury and death. [1] Some of the benefits asserted by those who participate in hazing are that the practice "creates deep and long-lasting bonds among those who endure it, instills the values of the group in new members, builds character, demonstrates commitment to the group, forges a connection with all members who had previously endured the experience, and inspires the respect of one's peers." [2] Yet numerous lawsuits against individuals, fraternal organizations, and educational institutions have prompted legislatures to pass hazing laws that augment and enhance general criminal laws. [3] The argument for these laws emphasizes that the "benefits of specialized hazing laws purportedly include the removal of procedural hurdles that have impeded prosecuting hazing injuries and increased awareness of the dangers of hazing." [4] However, the first hazing statute in America was not crafted with the goal of punishing hazing conduct of Greek-letter organization members. Rather, "[t]he first hazing statute in America appeared in 1874 in response to hazing in the military" and the "perceived attitude toward hazing by midshipmen." [5] It was long believed that the best way to eradicate conceit or "freshness" among new military initiates was through personal humiliation, leading to "plebe bedevilment" and torment. [6] In response, Congress enacted a federal law in 1874 criminalizing this type of hazing in military units, whether or not the acts resulted in actual harm. [7] In this Article, we offer an overview of the current hazing litigation landscape and what the future might look like in this area.

II. CRIMINAL LIABILITY

Many states have recognized the dangers and have codified statutes which punish hazing on the state level. [8] Although hazing offenses apply to the initiation or affiliation rites of any organization,

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state legislatures recognized the need to protect pledging youths who can, all too easily, be bullied or humiliated into engaging in risky or life-threatening conduct in return for social acceptance. [9] As such, many state and local courts now have mechanisms to impose criminal liability on the individual fraternity and sorority members as well as fraternal organizations. In this section, we investigate these mechanisms as well as the development of anti-hazing criminal statutes.

A. Member Liability

Considering the consequences of hazing and the potential for individual member liability in fraternal organizations, it is surprising in some respects that a substantial number of anti-hazing statutes have historically been based in education codes; some carry only educational penalties, such as suspension or expulsion of members involved in the incident. [10] The legislatures in Kentucky and Maine, for example, "require[] schools and universities to adopt regulations on hazing but have yet to criminalize it." [11] The consequence of this, of course, is that these statutes do not punish non-students who subject others to hazing. [12]

Early problems with addressing hazing involved the difficulty of defining hazing in the criminal context, particularly regarding the evolving hazing practices and psychosocial dynamics of fraternal organizations. [13] By 1990, only twenty-five states had enacted statutes making hazing a separate criminal offense. [14] Even then, there were challenges over issues concerning overbreadth, vagueness, and equal protection, among others. [15] A main issue with the criminalization of hazing and the applicability of other criminal charges is proving the intent of the crime committed. [16] When fraternity or sorority members

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intentionally haze, even when there is no intent to injure, they may still be charged with assault and battery. [17]

Incidents of hazing may involve assault, battery, kidnapping, sexual assault, manslaughter, false imprisonment, and other like crimes. [18] The benefit of charging participants under non-hazing criminal statutes is that they can reach even those participants who are not actually members of the fraternity as well as non-students that participate in the wrongful acts. These types of charges target members individually based on their conduct in the incident at issue. For example, five members of the Kappa Alpha Psi chapter at Fort Valley State College were charged with battery for their participation in a brutal hazing incident. Earl McKenzie and five other Kappa Alpha Psi pledges were beaten with canes and paddles as part of a "pledge line." [19] The incident began when one of the active members said he was going to "put somebody in the hospital tonight," and the pledges fled to McKenzie's parents' house, which led to an even worse punishment the following evening. That next night, the pledges were locked inside the fraternity house and pummeled with canes, kicks, and fists. [20] The beatings took place "over a period of five hours." [21] When McKenzie was hospitalized, his kidneys were on the verge of failure, while another pledge, Brian Beeler, was treated for a "sprained back, bruised buttocks and sore kidneys." [22]

In another hazing incident, "Chun Hsien Deng, a pledge from the City University of New York's Baruch College, . . . died during a hazing ritual called the 'glass ceiling,'" during which his fraternity brothers tied a heavy backpack full of sand to him and blindfolded him in freezing temperatures before assaulting him. [23] During the "ritual," Deng fell unconscious, and he passed away the next day. [24] The other fraternity members failed to seek medical attention for Deng; instead, they moved his body inside and attempted to resuscitate him without ever calling an ambulance. [25] Thirty-seven individuals were initially charged in the Deng case. Ultimately, five Pi Delta Psi members were charged with third-degree murder, and four of the five "later pleaded guilty to lesser charges in a deal with prosecutors." [26] When they were

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sentenced in January 2018, "three of the men received up to 24 months in jail, and the fourth, who could not previously make bail, was sentenced to time served after spending 342 days in jail." [27]

Perhaps one of the most severe recent cases in which individual members of a fraternity were criminally charged occurred at Louisiana State University in February 2019. Nine members of the Delta Kappa Epsilon chapter faced criminal charges relating to multiple hazing incidents involving several pledges. [28] One pledge reported that he was forced to stay in an ice machine filled with ice and water for more than thirty minutes before being instructed to lay down on a basketball court covered in broken glass. [29] He and another pledge also alleged that they were sprayed with a hose, had milk cartons thrown at them, and were urinated upon. [30] Several other pledges also reported that they were forced to stand in painful positions, sometimes for hours at a time. [31] The students were directed to assume positions such as the "'gargoyle', a handstand with an ice bucket below their heads, or the 'rack,' in which initiates would have to stand on their toes with fingers touching an inclined ceiling." [32] A pledge who reported that he was told to assume the "table" position said he was forced on his hands and knees while other fraternity members "used...

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