May 2012 Archives

"Hazing" Related Arraignments for Three Young Men Postponed

honey1.jpgBrighton District Court postponed the "hazing" arraignments of three members of the Alpha Epsilon Pi fraternity last week. The new arraignment date is now June 27. On that day they will be joined by six more young men similarly charged. All of the potential defendants are between the ages of 19 and 22 years old.

According to boston.com, on April 9, 2012 the Boston Police received a noise complaint involving a house in Allston. Their investigation revealed five 19-year old Boston University students in the basement with their wrists bound together by tape. They were clad in underwear and had coffee grounds, honey, hot sauce, and fish sauce dripped on them.

On the second floor, the police found two men that they believed were pretending to sleep. Another young man tried to run away. These are the three men that were in court last week. It is unclear how prosecutors determined just what each of them did, but they were variously charged with violating Massachusetts General Laws chapter 269, section 17 and 18 -- "Hazing" and "Failure to Report Hazing."

Most people are familiar with the term hazing as it traditionally involves arguably bizarre initiation activities at college fraternities. In criminal law, however, when a statute makes certain activities criminal, that statute must specifically spell out just what behavior is punishable by law.

The Massachusetts Hazing Statute defines hazing as conduct involving initiation into a student organization, that willfully or recklessly endangers the physical or mental health of a person. The statute gives these examples. Whipping, beating, branding, forced calisthenics, exposure to weather, forced eating, forced drinking, and the catch-all: "other brutal treatment . . . which is likely to adversely affect physical health or which subjects the person to extreme mental stress, including extended deprivation of sleep or rest or extended isolation."

The statute goes on to specifically exclude "consent" as a defense. In other words, those being initiated may not come to the rescue of hazers by saying that they agreed to their treatment. One man in the Brighton case actually did come forward to say: "I didn't feel victimized at all because it was a rite of passage and a choice that all five of us made together, and we knew we could walk away from it at any time." This is in stark contrast with the prosecutor's description of the hijinks as "inhumane." When hazing makes the news, even minor incidents may get lumped together with some other real tragedies.

Where is the line between a rite of passage and "brutal treatment?" And how can physical activity be "forced" if one agrees to it? Think about wind sprints at a sports practice session or calisthenics at military boot camp . This is an unusual statute. It says that initiators may not force initiatees to do stressful things. And then it says that the consent of the initiatees is not a defense. This is contradictory. If the force makes it a crime how can one accused of the crime be prevented from using lack of force (consent) as a defense?

Furthermore, how is the prosecution going to prove that what the Boston Police found was an initiation ceremony unless someone told them it was? The statute requires this proof and a jury may not convict on speculation.

In any event, if this case actually goes to a trial, I supposed the main issue will be whether or not the accused men did anything that they should have known would put the others at risk of physical or mental harm. I question whether any jury would find that they took chances with the mental or physical health of the others by tying them up and pouring various condiments on them. This is especially true when each marinated man apparently agreed to it and had the option of walking away.

In reality, I suspect that the defendants with experienced defense counsel are negotiating something with the prosecution such as dismissal prior to their arraignments with certain conditions such as community service, etc. This would explain the postponed arraignments for the first three. These men are college students that wish to keep their records clean for their futures. If they are arraigned, then the charges will be entered on their permanent Massachusetts Board of Probation records, and may appear when future employers do background checks. Dismissing the cases prior to arraignment would avoid this.

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New Decision Reduces Loss of License for Refusing Breathalyzer on Second OUI Arrest

keys.jpgYesterday, the state's highest court issued a significant decision regarding license losses for breath test refusals. Until yesterday, it had been understood that a person who refused a breath test after his/her second arrest for OUI would have his/her license suspended for 3 years. The court essentially reduced that to 180 days.

This decision only applies to those people that had their first offense "continued without a finding." If a person was actually found guilty of the first offense then this ruling will not change the status of their license loss.

In fact, this was the central issue in the case before the high court. The law says that there shall be a 3 year loss of license for those who refuse the breathalyzer after having been previously convicted. The court held that since a continuance without a finding is not a conviction, the 3 year license loss does not apply. The maximum loss of license, therefore, is 180 days.

FACTUAL EXAMPLE BEFORE THIS RULING:

Citizen A admits to sufficient facts for a First Offense OUI in 2010 and the case is continued without a finding.

Citizen A is arrested for OUI in June 2011 and refuses the breathalyzer at the police station.

Citizen A is convicted of the Second Offense OUI in July 2011.

Loss of License:
- 3 years for refusing the breathalyzer. No hardship license available.
- 2 years for the conviction of Second Offense OUI. Hardship after 1 year.
- Total loss of license with hardship 4 years.
.
THE CHANGE:

Loss of License:
- 180 days for refusing the breathalyzer. No hardship license available.
- 2 years for the conviction of Second Offense OUI. Hardship after 1 year.
- Total loss of license with hardship 1 ½ years.

THE DIFFERENCE:

2 ½ years without a license.

Anyone that has a situation even close to that of Citizen A should contact an experienced criminal defense attorney for assistance in license restoration.

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