Pi Kappa Alpha nationals indicted over UH chapter hazing incident

[CaliAggie]

This story caught my eye because a county grand jury indicted the PIKE national organization over a hazing incident that occurred at its University of Houston chapter. The punishment is a slap on the wrist tbh, but I was surprised to see PIKE HQ charged rather than the chapter or specific individuals. Has this happened before?

http://www.chron.com/local/education...y-12431031.php

[Kevin]

I can't imagine that'll stick.

[JonInKC]

As if any organization with as many chapters as Pike can control what any individual chapter does.

On a side note and speaking of Pike, whatever happened to BobbytheDon?

[shadokat]

They'll get dropped in the mass of people being sued.

[PhilTau]

The charge appears to have been made under a grand jury indictment. I'm speculating here, but I would guess that the DA placed some of the active members before the grand jury, had the court give immunity and forced them to testify against the fraternity's officers. Here's what the DA has to prove:

Tex. Educ. Code Sec. 37.153. ORGANIZATION HAZING OFFENSE. (a) An organization commits an offense if the organization condones or encourages hazing or if an officer or any combination of members, pledges, or alumni of the organization commits or assists in the commission of hazing. * * * [end of citation]

Below is a link to the Texas hazing statutes. The statutory authorization for immunity is included. (This msg is for discussion purposes and is not advice.)

http://stophazing.tamu.edu/rules-and-laws/texas-law

[Kevin]

If they can prove that Pi Kappa Alpha headquarters staff condoned or encouraged hazing, that’ll be pretty shocking and if it’s true, the national organization may be set up for civil damages. Then again, I don’t have the utmost confidence in the veracity of witnesses testifying in exchange for immunity.

[Tom Earp]

Yep, that will be very hard to prove by collusion. Right Kevin?

[PhilTau]

All speculation since we do not know how many witnesses DA has supporting her case or how they will testify. But generally, immunized witnesses are usually believed by juries, especially if it involves something like hazing.

Collusion or (more correctly) conspiracy is not required for an organization to be charged or convicted under the Texas statute I quoted above. The conduct or actions of "any combination of members, pledges, or alumni" is, under that statute, attributed to the organization as a whole. On the face of the statute, there is no requirement on the prosecution to prove that national headquarters had any knowledge of the activity. It is essentially a strict liability offense imputing activity by the fraternity's members to the "organization" as a whole.

(This msg is intended for discussion purposes only and is not legal advice and should not be relied upon as such.)

[Kevin]

Every crime requires an actus reus, right? So what is the bad act of the organization when individuals who are affiliated with an organization breach its explicit policies and violate state law? I understand that it is a crime, I'm just having a hard time processing how there can be criminal liability without some actual act, error or omission.

[PhilTau]

I have not researched the statute. It is possible that it may have been overturned or there may be some contradictory case law. Regarding the mens rea requirement in strict liability offenses. Wikipedia has a pretty decent explanation --

"In criminal law, strict liability is liability for which mens rea (Latin for "guilty mind") does not have to be proven in relation to one or more elements comprising the actus reus (Latin for "guilty act") although intention, recklessness or knowledge may be required in relation to other elements of the offense. The liability is said to be strict because defendants will be convicted even though they were genuinely ignorant of one or more factors that made their acts or omissions criminal. The defendants may therefore not be culpable in any real way, i.e. there is not even criminal negligence, the least blameworthy level of mens rea.

* * *

As the federal constitution entrenches a right of due process, the United States usually applies strict liability to only the most minor crimes or infractions. One example would be parking violations, where the state only needs to show that the defendant's vehicle was parked inappropriately at a certain curb. But serious crimes like rape and murder require some showing of culpability or mens rea. Otherwise, every accidental death, even during medical treatment in good faith, could become grounds for a murder prosecution and a prison sentence.

A serious offense in which strict liability tends to show up is in drunk driving laws; the punishment tends to be given on a strict liability basis, with no mens rea requirement at all. * * *

In many states, statutory rape is considered a strict liability offense. In these states, 22 as of 2007, it is possible to face felony charges despite not knowing the age of the other person, or even if the minor presented identification showing an age of eighteen or higher. The American Law Institute's Model Penal Code generally restricts strict liability to minor offenses ("violations")." [End of Wikipedia quote.]

Strict liability offenses are generally regulatory offenses that are part of a regulatory scheme. (This one is in the Texas Education Code.) They also involve a relatively low penalty and are not regarded by the community as involving significant moral impropriety. (This on no jail time and a relatively low fine.)

I am no criminal law expert, but my guess is that it is likely that proof of the mental state of those participating in the hazing activity will be required; but knowledge of or participation in the hazing by higher management is not required for conviction.

[Same disclaimer as above posts.]

[Kevin]

Oh I get strict liability. I'm just having a hard time figuring out the act or omission. If I'm Pi Kappa Alpha and I send our leadership consultant out for biannual visits (or whatever they do) and the consultant sees nothing of concern each time, they're doing that SLAG thing they do and are an outstanding chapter as far as I know.

The Chapter and National organization are corporately separate entities. It's basically a franchise model. Texas is basically trying to do something like fining Disney because an employee at a franchisee McDonald's committed an intentional tort (which civilly, they wouldn't be liable for because they'd be acting outside the scope of their employment).

And in all of your strict liability offense examples like statutory rape, the Defendant still did do a thing. There was an act. Here, there is not an act or omission. I just can't see how it works as a crime. Unfortunately, with a fine of $5K-$10K, we'll probably have to wait until a killing/serious maiming is prosecuted and that double medicals thing kicks in.

[and disclaimer: Pike, if you're reading this, go hire a lawyer in Texas and stop creeping Greekchat for legal advice.]

[PhilTau]

A nonprofit incorporated membership organization is a totally different animal than a corporate franchise scheme, though I certainly understand the point you raise about piercing the corporate veil. And it is likely that such a point will be asserted and argued at some point.

To give a precise answer (especially without knowing all the factual details) would take more research on the topic than I am willing to do. There may be Texas case law on this, but my gut tells me that if the Harris County DA was willing to go forward with the case and make press releases on it, more likely than not she feels she has a decent shot at winning and is willing to devote resources to the case. From a purely academic standpoint, it is not an easy, clear cut area of the law.

However, if I were to bet - I'd bet that, when asked, every XYZ active and every XYZ alumni would swear under oath that they are a member of XYZ national fraternity and that they are not merely a member of the local chapter of XYZ. This is a big problem for a national fraternity under this particular statute because it fits neatly into the language of the statute and arguably side-steps the corporate veil issue altogether.

(same disclaimer)

[Kevin]

Being a member of something and being an agent for something are two different things. If you're a member of Columbia House, you get your tapes in the mail on the regular. If you're a member of XYZ, you get a magazine and requests to give money. I can't imagine simple membership is enough to mean you can commit a crime which someone else, the organization, will be held liable.

[PhilTau]

Originally Posted by Kevin

Being a member of something and being an agent for something are two different things. If you're a member of Columbia House, you get your tapes in the mail on the regular. If you're a member of XYZ, you get a magazine and requests to give money. I can't imagine simple membership is enough to mean you can commit a crime which someone else, the organization, will be held liable.

Most would agree that a record club is not the same thing as a member-operated fraternity. Generally, the trend in the law has been to relax the stricter, traditional criminal liability requirements as they apply to corporations. This statute is a good example of that trend.

As a concept, I cannot separate a fraternal society/organization from its members. Such organizations simply do not exist without them. Whereas a commercial enterprise that is just selling records can - it is just calls its customers "members." Costco does the same thing. A real fraternity can never do this.

[Kevin]

Checking the citing references on my Westlaw account, aspects of the statute have been overturned. Not this provision yet. On the organizational hazing aspect, there are zero citing references.

As to the other parts which have been preempted as unconstitutional:

Section of education code providing that person commits personal hazing offense by recklessly permitting hazing to occur was unconstitutional as applied to high school wrestling coach;  wrestling coach, student wrestlers, parents, and members of Booster Club attended a party on a Saturday at a private residence, party was not sponsored by high school, attendance by student wrestlers was not mandatory, and many of the students' parents attended, and thus, even if coach was “educator” under circumstances, he assumed neither actual care nor custody of students because party was not mandatory, and students' parents were not excluded from attending.  State v. Zascavage (App. 2 Dist. 2007) 216 S.W.3d 495, petition for discretionary review refused.  

and

Section of education code providing that person commits personal hazing offense by recklessly permitting hazing to occur was facially unconstitutional;  section failed to identify any person or class of persons upon whom a duty to act, whether statutory or otherwise, was imposed, and statute simply imposed a duty on every living person in the universe to prevent hazing.  State v. Zascavage (App. 2 Dist. 2007) 216 S.W.3d 495, petition for discretionary review refused.  

and

Statute that criminalizes the failure to report knowledge of a hazing incident involving a student in an educational institution did not violate the privilege against self-incrimination in light of the defendants' statutory immunity from civil or criminal liability that might otherwise be incurred or imposed as a result of the report.  State v. Boyd (Cr.App. 2001) 38 S.W.3d 155.

and

Statute requiring reporting of hazing incidents at educational institutions was unconstitutional as applied to two defendants who had also been indicted as perpetrators of hazing incident on university campus that they were charged with failing to report, as such reporting would create real and appreciable risk of self-incrimination in violation of defendants' Fifth Amendment rights.  State v. Boyd (App. 14 Dist. 1999) 2 S.W.3d 752, petition for discretionary review granted, reversed 38 S.W.3d 155.  

and

Statute providing for grants of immunity from prosecution to persons reporting hazing incidents at educational institutions and testifying for prosecution with respect thereto did not permit construction of statute requiring reporting of hazing incidents in manner not repugnant to Fifth Amendment privilege against compelled self-incrimination, as immunity statute vested considerable discretion in trial court to determine whether immunity would be granted in particular case.  State v. Boyd (App. 14 Dist. 1999) 2 S.W.3d 752, petition for discretionary review granted, reversed 38 S.W.3d 155.  

The operational language is this:

(a) An organization commits an offense if the organization condones or encourages hazing or if an officer or any combination of members, pledges, or alumni of the organization commits or assists in the commission of hazing.

While I'm buying that by being a "member" of Pi Kappa Alpha, one can be a member. I don't think membership confers agency unless, for example, the Chapter Adviser, an appointee of the general HQ is in on the hazing.

It's an interesting question. I hope Pike doesn't plead out.