The Cost of Belonging: Hazing Injuries and the Law

Michael GrossmanOctober 25, 2016 8 minutes

"Power tends to corrupt, and absolute power corrupts absolutely."

So said Lord John Dahlberg-Acton in the 19th Century. Of his varied and highly-quotable commentaries as a historian and politician, this is the one that best stuck with us as a society. When placed in a position of absolute authority over their peers, people will often find a way to abuse that power.

We can see proof of Lord Acton's stated concept just about anywhere we look, but today I want to look specifically at our schools. Reports come in uncomfortably often about students abusing one another physically, emotionally, and psychologically. When students harm one another with the alleged purpose of inducting them into some form of club or organization, it's known as hazing.

Most people view hazing strictly through the lens of a social problem. In many instances hazing can be a criminal matter, but what is rarely discussed is that it is almost always done by young people in an environment structured by adults. These adults have a duty to supervise the young people in their care to ensure that they can engage in their chosen activity safely. What is lacking from the hazing discussion is consideration of the the civil liability for adults and institutions who fail in their supervisory duty.

What is Hazing?

The best definition I've seen comes from the website of a group dedicated to stopping the behavior,

"Hazing is any action taken or any situation created intentionally that causes embarrassment, harassment or ridicule and risks emotional and/or physical harm to members of a group or team, whether new or not, regardless of the person's willingness to participate."

In the interest of thoroughness, however, here is a link to Texas Penal Code § 37.151, which specifically outlines the legal definition of hazing, both in terms of involved parties and related actions (§ 37.152).

For example: In high school, anyone who succeeds in tryouts can join a sports team, but to truly be "one of the guys," there is sometimes an initiation ritual of some sort that causes physical or psychological distress to the would-be team member. Such actions are not sanctioned by the school, but sometimes are permitted by coaches or athletic coordinators as a method of "fostering team spirit."

This can take a variety of unpleasant forms depending on the creativity and cruelty of the perpetrators. A recent example comes from Tennessee's Ooltewah High School, where four freshman basketball players were violently assaulted by other team members as a rite of induction to the team. According to the Hamilton County District Attorney's Office, several members of the team are charged with assaulting the four new players with pool cues during a team retreat to a cabin in the resort town of Gatlinburg, and at least one of the freshmen was apparently raped on the same trip. Three of Ooltewah High's athletic staff have been charged with failing to report these abuses, keeping with a long history in sports culture of protecting athletes from repercussions. The three were charged with complicity after one of the freshmen required surgery to repair the damage done during the hazing.

While the attorney for one of the charged school employees insists that the incident should not be classified as "hazing," one would be hard-pressed to find a more accurate or more heartbreaking example. It is virtually impossible that any of the victims were comfortable with being beaten or sexually assaulted, but acceptance by their peers was dependent on their compliance.

There has been an uptick in violent high school hazing incidents partly because of the belief that this behavior mirrors the "college experience" of anyone hoping to pledge to a Greek organization. While not the birthplace of the activity, the American Greek college system is infamous at this point for extraordinary acts of cruelty that ostensibly promote a bond between members that some argue cannot be achieved any other way.

Many schools and states have outlined strict anti-hazing policies and enforce them to the best of their ability. However, organizations continue to maintain old traditions, and in so doing hurt those who seek to join them. For example, University of Virginia freshman Aiden Howard recently made allegations of hazing by the football team when he joined as a receiver. The weeks of taunting and bullying culminated in a coup de grâce when Howard was placed in a makeshift boxing ring and forced to fight in a "gladiator style" match against another freshman. Over 100 witnesses watched and cheered; there were even announcement made in the style of a boxing match. Aiden was struck so hard that his vision doubled, and the fight ended. He was later informed that he was concussed and would be unable to practice with the team.

Texas Has Its Share of Hazing Cases.

The Lone Star State has its own legacy in this department, unfortunately. While the reports more commonly involve fraternities, reports are not limited to men. A sorority chapter was rumored to have forced a pledge to have sex with a designated number of men picked by the "big sisters" of the organization in order to be considered for acceptance. It was alleged that her candidacy was used as leverage to make popular figures around campus more likely to show up at the chapter house. The same chapter faced several allegations of dangerously over-intoxicating their pledges for initiation purposes.

In a different and more widely-publicized event, brothers of the Alpha Phi Alpha fraternity chapter at Southern Methodist University savagely beat a freshman pledge and forced him to drink gallons of water over a short interval of time. Even though the drink wasn't alcoholic, it caused internal damage to ingest so much over so short a time. Investigations of the chapter revealed many safety violations and a lack of oversight by the fraternity's national chapter, whose function is to regulate state chapters and eliminate these behaviors.

Texas' most notable institutions no doubt have archives riddled with such reports of violence and manipulation, but by far the weapon of choice with which to haze appears to be alcohol. Victims--be they arrested, hospitalized, or killed--are found in the majority of cases to have intolerably high blood-alcohol content.

While some hazing injuries (and deaths) did make the news over the decades, most of the incidents go without mention due to the clandestine nature of the activity. Participants on both the giving and receiving ends are compelled to keep the hazing a secret for the sake of the organization, and their silence is rewarded with the camaraderie of their tormentors and fellow victims.

What Can I Do As a Victim of Hazing in Texas?

First and foremost, I would encourage anyone who falls victim to one of these activities to come forward and notify campus authorities and police as soon as possible. As with most occurrences of hazing, you would likely be encouraged to "keep it quiet" and in return your chances of acceptance to the organization or team will supposedly be increased. In those circumstances you are a victim of both assault and extortion, and your attackers deserve to face justice. No one can make you do it, but weigh the supposed benefits of inclusion against the physical and emotional scarring of being beaten, raped, or force-fed dangerous quantities of alcohol--by the very people whose company you sought.

Given that physical injury is so often a factor in these matters, there is a strong likelihood that both the organization and the school that hosts it can be held liable to some degree for damages suffered by the victim. Criminal prosecution will likely be in order for the individuals who actually commit the assault, but given that they are acting representatives of a fraternity/sorority/team and acted outside the law, that organization is partially responsible for their actions. State Greek chapters and by extension the national chapters that oversee them are responsible for the actions of chartered members.

In these cases, it is often in a victim's best interest to seek the help of a personal injury attorney. In many instances, attorneys have discovered records of administrators overlooking or suppressing information about member misconduct. Many Greek organizations have histories of covering up allegations or evidence of wrongdoing by their brothers or sisters, suggesting that one of the fringe benefits of inclusion may be reliable alibis and a measure of protection from accountability. Naturally, without official subpoena the likelihood of seeing any of these documents is minimal. An attorney can be instrumental to creating and directing the appropriate paperwork to make these records available.

It's important to add that the Texas Penal Code § 37.151 specifically dictates that a pledge's consent to participate in a hazing ritual does not indemnify the parties that hurt him or her:

"CONSENT NOT A DEFENSE. It is not a defense to prosecution of an offense under this subchapter that the person against whom the hazing was directed consented to or acquiesced in the hazing activity."

To suggest that a pledge is entirely in control of a hazing situation is to fundamentally misunderstand the power dynamic between those already in the organization and those wanting to join it. The Texas Penal Code had to specifically address this particular problem because the pledge's consent was considered an affirmative defense for some time, and that is not fair to the injured party.

Potential Legal Snags in Texas Tort Law

Depending on the specific circumstances of the injuries, Texas tort law includes some statutory rules that might interfere with recovery:

  • Regarding recoveries by sports team members who are hazed: Texas law prohibits recovery for injuries that occur on-field during school activities. If a plaintiff were to suggest that he was deliberately targeted during football practice, for example, and he was subsequently injured by defensive linemen, he would have little recourse against the school behind the team.

    The Texas Tort Claims Act (TTCA) includes provisions under what is known as the Recreational Use Act that grants limited immunity to government institutions (including public schools) when injuries occur on their premises:

    "[I]f a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater degree of care than is owed to a trespasser on the premises."

    Unless it can be proven that functionaries of the school (coaches, trainers, or staff, for example) deliberately caused harm to the athlete, a field injury would be protected under Texas law.

    With that said, the injuries we're examining right now don't tend to happen on-field during the course of a sporting event. Hazing and "initiation" rites tend to occur out of the public eye, in locker rooms or player homes. On-field immunities do not apply, and locker room activities are not in themselves recreational per the terms of the TTCA.

  • Another major stumbling block exists in the TTCA's other protections of public institutions, including schools: The code statutorily limits recovery for on-site injuries to $100,000 maximum per plaintiff, and no more than $300,000 per incident. This would also apply to sports teams, but it would additionally limit state schools' responsibilities in the event of hazing by fraternities or sororities on campus. UT Austin, Texas A&M, Texas Tech, and other state-subsidized colleges would bear limited financial responsibility in the event that a Greek organization or sports team engaged in hazing. While $100,000 is certainly more helpful than nothing, it is a pity that institutions who play host to such violence are protected by the law from full accountability.

    It's important to note that private institutions are not afforded the same protections. The student who was so brutally hazed at SMU would be able to pursue maximum damages against the school as well as the fraternity itself. The same principle applies to private middle- and high schools--without state sponsorship, their liability is unlimited.

The Law Can Help Hazing Victims Fight Back

The notion that bonds are formed through sadomasochistic power exchanges is not unique to Greek life and sports teams, but it sees unsupervised and exaggerated examples in this context. People are beaten for the chance to belong. That is unacceptable, and despite half-hearted attempts to control or eliminate these rituals they persist and thrive. The Internet is full of chilling tales of unsolicited violence and life-altering abuse. Others endure hazing and come out the other side positive that it's an important and formative experience, but as a matter of opinion I equate that with Stockholm Syndrome.

If you or a loved one are injured in a manner consistent with hazing--assaulted or damaged by a group, team, or club as a pre-condition for membership--I encourage you to consult an attorney to determine your rights. You should not have to shoulder the burden of your medical bills, loss of income, and trauma alone.

Victims don't have to endure in silence. There are both criminal and civil means to punish those who still engage in hazing. The fact is that while politicians have passed laws in almost every state outlawing hazing, it is as rampant as ever. It seems that the only thing that motivates many institutions enough to stamp out this wretched practice is money. Until hazing starts costing institutions money, they will continue to look the other way and young people will continue to be victimized.

Some may object to this view on the grounds that kids will be kids, that hazing is a practice that has been tolerated and even celebrated as an effective strategy for team building. This is ridiculous. The late Paul Brown, a Hall-of-Fame football coach, banned hazing on his teams as far back as the 1950s. Fighting back against hazing and the institutions that continue to look the other way isn't about coddling our young people, it's about protecting them from barbarism.

There's nothing in John Wooden's pyramid of success about hazing. None of the great coaches in our history ever condoned hazing. Its practitioners merely show their weakness by preying upon others. It doesn't build winners, it gratifies losers. Hard work, mutual sacrifice, and dedication to a single goal are hallmarks of successful people and teams. So is standing up for those who can't stand up for themselves.