OHIO COURT DECLARES HAZING STATUTE VAGUE

Timothy M. Burke, Manley & Burke

In a newly reported decision, an Ohio trial court struck down a portion of Ohio’s Anti-Hazing statute for vagueness, but allowed a hazing victim’s claim to proceed. Charles Carpetta was a student at the University of Toledo who pledged the Pi Kappa Alpha Chapter there. While pledging, Carpetta went through a series of acts he alleged were humiliating and mentally damaging. While there appeared to have been no long-term physical harm, the ridicule, offensive language, abusive scavenger hunt and continued cajoling and threats were alleged to have caused Carpetta to drop out of school.¹

The lawsuit brought against the fraternity and the other defendants was based solely on Ohio’s hazing statute. In response to the lawsuit filed against the national fraternity, the chapter and some of the individual members, the national and the chapter filed motions to dismiss² alleging that the hazing law was unconstitutional. It states, in part:

“As used in this section, ‘hazing’ means doing any act, or coercing another, including the victim, to do any act, of initiation to any student or other organization that causes, or creates a substantial risk of causing, mental or physical harm to any person.”³

Considering the motions to dismiss, the Court first overruled defendant’s claim that the statute created an overbroad restriction on the First Amendment Freedom of Speech rights. The Court adopted the reasoning employed by two other states in finding that the Ohio Hazing Statute sought “to protect the health and safety of the public by proscribing conduct rather than First Amendment expression.”⁴

A statute which prohibits both protected First Amendment speech as well as unprotected conduct may be found to be overbroad. That is, it regulates too much.  Here,  there  was no freedom of speech right to haze and cause harm.

What the Court did ultimately find was that the prohibition of the statute against the causing of “mental harm” was unclear and vague. While finding that physical harm was a well-defined term in American jurisprudence, the Court clearly had difficulty with what was intended in  the statute by the causing of “mental harm.” It specifically found that “the phrase ‘mental harm’ is too unclear and imprecise to afford either notice to persons of what is prohibited, or clear and ex.act enforcement standards to law enforcement officers.” As a result. the Court found that the  unconstitutionally vague phrase ”mental harm” prevented Carpetta from recovering for mental harm inflicted upon him in violation of the statute. However. the Court also found that  Carpetta could proceed to recover those damages which he could prove arose from the physical harm sustained in violation of the statute and for the mental and physical pain and suffering resulting from such acts. While the Court did not specifically say it, the decision suggests that there is no direct recovery under the statute for mental harm, but where prohibited acts resulted in physical harm, the damages that a plaintiff could recover included both damages for physical and mental harm.

Following this decision, the case was settled without appeal.

¹ Carpetta v. The Pi Kappa Alpha Fraternity (1998), 100 Ohio Misc.2d 42 [1st published Ohio State Bar Association Report, November 22, 1999, Volume 72, No. 47].

² A motion to dismiss may be filed by defendants even before they are required to file an answer to a complaint.  Essentially,  it alleges  that even if everything stated in the complaint against  it is true as a matter of law, no liability against the defendants can be found on the basis of the claimed facts.

³ O.R.C. 2903.31

⁴ State v. Allen (Mo.1995), 905 S.W. 2d 874, 877-878; and People v. Anderson (1992). 148 Ill. 2d 15, 31, 591 N.E.2d 461, 469.