Hazing Laws in Louisiana
In light of the recent arrests of nine members from the LSU chapter of Delta Kappa Epsilon, this article addresses the new Louisiana hazing laws and other current laws that shall be understood in connection with hazing charges in Louisiana. In 2018, the Louisiana legislature created new anti-hazing laws, including the Max Gruver Act, that were designed to prevent future incidents of hazing in Louisiana. The arrests of the DKEs are the implementation these new laws.
The new statute called Criminal Hazing, La RS 14:40.8, was created and adopted in 2018. It makes it illegal for anyone to commit an act of hazing.
Penalties for Hazing
The penalty for Criminal Hazing in Louisiana is a fine of up to one thousand dollars and/or imprisonment for up to six months. This is a misdemeanor offense.
If the hazing results in the serious bodily injury or death of the victim, or the hazing involves forced or coerced alcohol consumption that results in the victim having a blood alcohol concentration of at least 0.30 percent by weight based on grams of alcohol per one hundred cubic centimeters of blood, any person who commits an act of hazing shall be fined up to ten thousand dollars and imprisoned, with or without hard labor, for up to five years. This is a felony offense.
Duty to Report
The Criminal Hazing law includes a duty to report incidents of hazing for any national organization of the fraternity. If the national chapter of the fraternity obtains information of hazing, it must notify law enforcement of the incident.
Penalties for the Organization
Failure to report the incident may result in (1) payment of a fine of up to $10,000; (2) forfeiture of any public funds received by the organization; and (3) Forfeiture of all rights and privileges of being an organization that is organized and operating at the education institution for a specific period of time as determined by the court. If the hazing results in the serious bodily injury or death of the victim, or results in the victim having a blood alcohol concentration of at least 0.30 percent by weight based on grams of alcohol per one hundred cubic centimeters of blood, the period of time shall be for not less than four years.
This creates a strong interest for the national chapter to turn in any member of the local chapter to law enforcement for alleged hazing. However, prior to reporting the incident to law enforcement, the national chapter has 14 days to conduct its own investigation to determine the truthfulness of the allegations. Given the climate of anti-hazing and the potential penalties, it is likely that most allegations will get reported to law enforcement in an effort of the national chapter to protect its own interests.
What is Hazing in Louisiana?
Definition of Hazing
“Hazing” is any intentional, knowing, or reckless act by a person acting alone or acting with others that is directed against another when both of the following apply:
(i) The person knew or should have known that the act endangers the physical health or safety of the other person or causes severe emotional distress.
(ii) The act was associated with pledging, being initiated into, affiliating with, participating in, holding office in, or maintaining membership in any organization.
Examples of Hazing
“Hazing” includes but is not limited to any of the following acts associated with pledging:
(i) Physical brutality, such as whipping, beating, paddling, striking, branding, electronic shocking, placing of a harmful substance on the body, or similar activity.
(ii) Physical activity, such as sleep deprivation, exposure to the elements, confinement in a small space, or calisthenics, that subjects the other person to an unreasonable risk of harm or that adversely affects the physical health or safety of the individual or causes severe emotional distress.
(iii) Activity involving consumption of food, liquid, or any other substance, including but not limited to an alcoholic beverage or drug, that subjects the individual to an unreasonable risk of harm or that adversely affects the physical health or safety of the individual or causes severe emotional distress.
(iv) Activity that induces, causes, or requires an individual to perform a duty or task that involves the commission of a crime or an act of hazing.
What is Considered Not Hazing?
A physical activity that is normal, customary, and necessary for a person’s training and participation in an athletic, physical education, military training, or similar program sanctioned by the education institution is not considered “hazing.”
Penalties for Criminal Hazing Stacked
The Criminal Hazing law states that any penalties for criminal hazing may be imposed in addition to the penalties imposed for any other criminal charge. For instance, if the defendant is also prosecuted for simple battery, second degree battery, or even manslaughter, he can be sentenced for those charges as well. If the defendant receives a six-month sentence for simple battery and a six-month sentence for criminal hazing, the judge could even run those sentences consecutively, leaving the defendant with one year in jail.
What About Consent to Hazing?
The legislature has made clear in La RS 14:40.8 that the pledge consenting to the hazing is NOT a defense to an accusation of hazing. Therefore, if the alleged hazing offender, i.e. the active member, cannot use as a defense the fact that the pledge knew when he showed up that evening that he was going to get hazed.
Compare Hazing to Battery – Consent Issues
Some of the DKEs arrested were charged with battery. Some have been charged with second degree battery, others with simple battery. Battery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another. Simple battery in Louisiana is a battery committed without the consent of the victim. It is a misdemeanor. Second degree battery is a battery committed when the offender intentionally inflicts serious bodily injury. It is a felony. If the victim consented to the battery, the act is no longer a battery. Think of a boxing match. The boxers don’t get charged with battery after the fight because they both consented to receiving a battery.
Defense to Battery Charges
As you see, criminal battery requires lack of consent on the part of the victim. If the victim consents to the intentional use of force or violence, the defendant should not get convicted of battery. This may be a defense for the DKEs charged with battery, only as to the battery charges, not the hazing charges.
It could be argued that the pledges knew what they were getting into every night that they went to the DKE house. It may be established that they even knew while rushing what the pledging process involved at DKE.
This Is why the legislature including in the Criminal Hazing statute that consent is not a defense. The legislature knew that the pledges are aware of and consent to the hazing. The legislature did not want this to be an escape from criminal liability. The statute would have no teeth. However, the battery statutes don’t include the same teeth. Consent is a defense for the accused. Once the battery charges are defeated, all that is left to prosecute will be the misdemeanor hazing charges.
Failure to Seek Assistance
Another new Louisiana law created in 2018 in response to the Max Gruver incident is the creation of La. RS 14:502. This law makes it a crime for anyone at a scene of an emergency who knows that another person has suffered serious bodily injury to fail to report a serious bodily injury for medical assistance.
It requires that any person who sees that another person has been badly hurt should call 911 if the can reasonably do so without creating harm to himself or another person. The statute includes that anyone who engages in excessive binge drinking, hazing, and other acts of criminal nature that results in serious bodily injury, must report the incident to 911 or other medical personnel.
“Serious bodily injury” means bodily injury that involves unconsciousness, extreme physical pain, or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, death, or a substantial risk of death.
For example, if a bunch of fraternity members force a pledge to drink until he passes out or even impairment, and it may be argued that this is serious bodily injury that must be reported to 911. Failure of anyone present who is aware of the impairment to call 911 may be charged with this felony.
The penalties for violating this statute include a fine of up to one thousand dollars and/or imprisonment for not more than one year. If the victim dies, the imprisonment is up to five years. This is a felony charge in both scenarios.
This statute makes sense on a basic sociological level. If someone sees that another person has been badly hurt, they should call for help. This is simple and human beings should naturally be able to apply this concept. However, the Louisiana legislature has recognized that some students at LSU do not grasp this concept; therefore, they cannot apply it. As a result, the legislature has felt compelled to create a law dictating how college students in Louisiana should behave.
Defense to Failure to Seek Assistance
The defense to Failure to Seek Assistance could be that witness to the serious bodily injury could not report the incident due to a reasonable perceived danger or peril to himself or others if he were to do so.
For instance, the other pledges that were witnessing their pledge brother receive the serious bodily injury may feel so intimidated that if they got up and went to call 911, then they would be in harm’s way. However, this may not be a good defense for the other active members who view the incident.
Hazing Prohibited Under La RS 17:1801
Another new statute is La RS 17:1801. It basically states that hazing is prohibited at any education institution that is supported in any way by public funds. Whoever violates this statute may be expelled, suspended, or dismissed from the education institution and not permitted to return for at least one semester, quarter, or comparable academic period. It also makes clear that the offender is subject to the penalties in La RS 14:40.8 above.
If an organization has taken disciplinary action against one of its members for hazing or has reason to believe that any member of the organization has participated in an incident of hazing, the organization shall report the incident to the institution with which it is affiliated. If an organization or any of its members has been disciplined by a parent organization for hazing, the organization shall report the hazing for which the organization was disciplined to the institution with which it is affiliated.
The new statute of La RS 17:1801.1 requires that every institution adopt an anti-hazing policy. The law requires that each new student shall be provided educational information on the dangers of and prohibition on hazing during the new student orientation process in the form of a handbook. Also, beginning in the fall semester of 2019, each new student shall be provided educational information on the dangers of and prohibition on hazing during the new student orientation process either in person or electronically.
Additionally, each organization as defined in R.S. 17:1801 shall provide annually at least one hour of hazing prevention education to all members and prospective members. The education may be provided in person, electronically, or both. Each organization shall submit a report annually to the institution with which it is affiliated relative to the students receiving such education evidenced by an attestation of the student receiving the education.
The criminal statutes and laws mentioned in this article do not prevent the filing and pursuit of any civil action or claim. Therefore, any victim of a battery or hazing could file a petition for damages against the offender for any damages that may have been caused.
What is the Process Ahead?
The nine DKEs have only been arrested. The charges they were booked under are not necessarily the charges the District Attorney will pursue. The DA will have to decide if he will allow the DKEs to enter his pretrial program, the completion of which results in a dismissal, or to prosecute. This determination rests largely on the pressure against or agreement of the victim(s) to the resolution. If the victim does not consent to the pretrial and dismissal, the DA may choose to prosecute. The DA must either send the felony to grand jury to seek an indictment or file a bill of information charging the defendant. Regarding those charged only with misdemeanors, the DA must file a bill of information formally charging them with a crime(s) in order to prosecute.
Regarding a formal felony charge, the defendant would have an option to go to trial by judge or jury. The misdemeanors must be heard by judge alone at trial.
However, there will likely be a series of court dates prior to trial in which the DA and defendants may come to a resolution. Many of the DKEs have clean records, while others have prior arrests and even other current pending cases. Therefore, all of their situation’s differ. The facts may all be different as applied to each defendant. It is not clear at this point who is accused of what crime. As a result, the outcomes will likely be different from defendant to defendant.
This article was written to give a better understanding of the legal climate surrounding hazing in Louisiana. It is not intended to be formal legal advice. The legislature has taken serious efforts to curtail hazing at LSU and in Louisiana. The laws were created as a response to the death of Max Gruver. The Gruver incident was a horrible incident that should have never occurred.
Using intimidation to force another kid to drink large amounts of alcohol is not a test of character. It does not build character in the pledge. It does nothing. That set of circumstances is classified as hazing. The allegations the nine DKEs face may also be considered hazing under the statute. It will be interesting to see how it turns out.