FLORIDA HAZING LAW FAILS FIRST TEST

Tim Burke, Manley Burke, tburke@manleyburke.com

In what was apparently the first effort to enforce Florida’s new tough anti-hazing law, the criminal prosecution of four fraternity members ended in a mistrial when the jury could not define “serious bodily injury.”

In 2005, the State of Florida adopted amendments to its hazing law which made hazing resulting in serious bodily harm a felony of the third degree.  If convicted, the defendants could have received a sentence ranging from 5 years in prison to probation.  The statute specifically provides:

  “A person commits hazing, a third degree felony … when he or she intentionally or recklessly commits any act of hazing … upon another person who is a member of or an applicant to any type of student organization and the hazing results in serious bodily injury or death of such other person.”

Florida’s definition of hazing is similar to the definitions of hazing used in many of the more than 40 other states which have adopted laws making hazing a crime.  Florida defines hazing as:

  “Any action or situation that recklessly or intentionally endangers the mental or physical health or safety of a student for purposes including, but not limited to, initiation or admission into or affiliation with, any organization operating under the sanction of a post-secondary institution.  ‘Hazing’ includes, but is not limited to, pressuring or coercing the student into violating state or federal law, any brutality of a physical nature, such as whipping, beating, branding, exposure to the elements, forced consumption of any food, liquor, drug, or other substance, or other forced physical activity that could adversely affect the physical health or safety of the student, and also includes any activity that would subject the student to extreme mental stress, such as sleep deprivation, forced exclusion from social contact, forced conduct that could result in extreme embarrassment, or other forced activity that could adversely affect the mental health or dignity of the student.  Hazing does not include customary athletic events or other similar contests or competitions, or any activity or conduct that furthers a legal and legitimate objective.”

The Florida law also makes it clear that it is not a defense to the charge of hazing, that the victim consented, the activity was sanctioned or approved by the organization, or that it was done as a condition of membership.  The Florida law requires that public and non-public post-secondary educational institutions have an anti-hazing policy, adopt rules prohibiting hazing and have a program for enforcing those rules.  The statute specifically authorizes state colleges and universities to withdraw permission for an organization that has engaged in hazing to operate on college property.

If serious bodily injury or death does not occur, hazing is a first degree misdemeanor, involving much lighter criminal penalties, if the hazing “creates a substantial risk of physical injury or death to such other person.”  What is curious about the Florida statute is that certain activities which are prohibited under other anti-hazing state statutes, university regulations and fraternity and sorority rules that do not create “a substantial risk of physical injury or death” arguably may fit within the definition of hazing but are not subject to criminal penalties.

Anyone convicted of hazing which either resulted in “serious bodily injury or death” or created “a substantial risk of physical injury or death” is also required to attend and complete a four-hour hazing education course.

The defendants were members of Kappa Alpha Psi at Florida A&M University.  The allegations in the trial were that the defendants had used canes, boxing gloves and bare fists to beat Marcus Jones, a 20-year old who wanted to become a member.  According to Jones, the beatings lasted over four nights.  He suffered a broken eardrum and needed surgery on his buttocks.  According to an Associated Press story, a fifth defendant “was accused of assisting in the alleged hazing by encouraging Jones and other would-be fraternity members to bear up under the beatings and revive them with water when they passed out from the pain.”

The jury deliberated only three hours when they reported that they could not reach a result.  Twenty minutes earlier, the jury had asked the judge for a better definition of “serious bodily injury” and how to differentiate between serious and moderate injury.  The judge declined to provide any legal instruction to assist in differentiating between degrees of injury apparently since none was provided by the statute.  The defendants had called upon a doctor from Palm Beach County who did testify that the injuries to Jones were not serious and that, in his opinion, surgery had not been necessary.  The AP story by Bill Kaczor said “the physician told the jury he testified without a fee and paid his own expenses because he felt the injuries had been blown out of proportion by the State,” and “somebody needs to say so.”

Where a mistrial has been declared, the prosecutor could decide to try the case over again.  The difficulty here is that the language of the statute itself may make another trial no more successful than the first one.  Clearly, the legislature of the State of Florida could have provided a definition for the term that gave the jury trouble.  That they did not may permit these individual defendants to escape a felony conviction.