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CO Hazing law collecting dust
February 22, 2005
Hazing law collecting dust
By George Merritt
Denver Post Staff Writer
More than five years after state legislators made hazing illegal, no one has been charged with the crime, lawmakers and attorneys say.
Incidents that seem scripted to what the law's sponsors had in mind have come and gone. And while some charges are filed, hazing is not among them.
"It obviously is not discouraging the activity, which is the whole purpose of passing the law," said Sen. Ron Tupa, D-Boulder.
Most recently, authorities considered whether hazing charges were warranted in the September death of Lynn "Gordie" Bailey.
Chi Psi fraternity brothers blindfolded the University of Colorado freshman and 26 other pledges, dropped them off in the mountains with bottles and jugs of liquor, and told the pledges "no one is leaving until the whiskey is gone."
The next day, Bailey was dead with a blood-alcohol level of 0.328 percent.
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"This one seemed to be one of those that sounded more like hazing," said former Sen. Terry Phillips, D-Boulder, who co-sponsored the hazing bill.
Bailey's family and the national Chi Psi fraternity concluded that Bailey was hazed. But Boulder prosecutors charged 12 fraternity members with providing alcohol to someone under 21 - a class 2 misdemeanor. No hazing charges were filed, which would have been a class 3 misdemeanor, a lesser offense.
"I don't know all the facts involved ... but if this isn't (hazing), what is?" Phillips said.
Boulder prosecutor John Pickering declined to comment about the Bailey case because some charges are still pending.
The statute defines hazing as "any activity by which a person recklessly endangers the health or safety of or causes a risk of bodily injury to an individual for the purposes of initiation or admission into or affiliation with any student organization."
Though no agency tracks the use of the hazing law, The Denver Post contacted prosecutors, defense attorneys and police throughout the state, and they say the law has never been applied.
There are likely two reasons why, prosecutors and lawyers say - the language of the law itself and the relatively minor penalties it calls for.
The Chi Psi case is not the only case to be labeled hazing without the hazing criminal charge.
In November 2001, Boulder's Kappa Alpha Theta sorority was placed on probation after two pledges wound up in the hospital with alcohol poisoning. The pledges were blindfolded and required to consume 14 drinks listed on a checklist.
The national chapter concluded that the incident was a hazing violation. Hazing charges, however, were not filed.
In both cases, a single word may have been the difference, experts said. Among the activities that qualifies as hazing, according to the statute, is "forced consumption of any food, beverage, medication or controlled substance ... in excess of the usual amounts for human consumption."
While some say the definition seems to fit either case, former 18th Judicial District Attorney Jim Peters said the word "forced" could make the law difficult to prove in court.
"Generally, people who join fraternities are doing it voluntarily," he said. "I mean, it is their choice."
But Tupa, who supported the law, said prosecutors shouldn't wait for a person to be unwillingly hazed before charging him with hazing.
"That kind of logic makes the whole statute pointless. Most of these students are willing participants," said Tupa, noting other states enforce hazing laws.
Forty-four states have hazing laws on the books. Wyoming and New Mexico are among those that do not.
In 1999, when Colorado's hazing bill was debated, several lawmakers questioned whether the crimes related to hazing weren't covered by other laws such as reckless endangerment, harassment and assault. Anything less, they argued, would be too petty to prosecute.
"Let's leave a safe zone for youthful nonsense," then-Rep. Shawn Mitchell, R-Broomfield, said at the time. Mitchell is now a state senator.
Ultimately, after a failed attempt in 1998, the hazing proposal passed in 1999 by a narrow margin, hailed by proponents as a law that "speaks to the health, well-being and safety of the people of Colorado."
Peters, who has considered pressing hazing charges in a 1999 case, said the level of the offense - class 3 misdemeanor - can be too low for the crime.
Being ticketed for cruising, for example, also is a class 3 misdemeanor. Harassment or assault, Peters said, can be far more severe, requiring a stiffer charge than hazing.
"Where there is a clear statue that calls for a higher penalty, that is the avenue that a good prosecution takes," Peters said. It's a better option, he said, than taking a risk "on something that is unclear, untested and may not fit the particular situation."
Meanwhile, lawmakers at the Capitol are debating whether to pass new laws to tackle another kind of dangerous activity - this time, the abuse of alcohol.
Tupa said the hazing law's dormancy shows the challenge lawmakers face in trying to legislate safe behavior, especially among young people.
"I think it all underscores the difficulty of prohibiting an activity that is legal for adults over 21."
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