Thursday, May 8, 2014
Brandon W. Chamberlin has posted 'Am I My Brother's Keeper?': Reforming Criminal Hazing Laws Based on Assumption of Care (Emory Law Journal, Vol. 63, p. 925, 2014) on SSRN. Here is the abstract:
One hundred years ago, two states had criminal laws addressing collegiate hazing. Today, hazing is a crime in thirty-nine states. However, this flood of legislation has failed to stem the tide of hazing injuries and deaths. The current criminal law approach to hazing has failed because the claimed benefits of specialized hazing laws are illusory. Moreover, the rare cases in which hazing laws provide a benefit over general criminal statutes are the very cases in which the hazing laws are most vulnerable to legal challenge. The current approach also fails on policy grounds. A pure enforcement approach that does not engage with students’ values and beliefs about hazing may have the unintended effect of entrenching pro-hazing norms. The creation of sweeping criminal liability also increases the danger of hazing by driving it further underground.
This Comment argues for jettisoning the current, failed approach to hazing and instead imposing a duty of mutual aid on members of collegiate student groups. Under this Comment’s proposal, if a student becomes helpless as a result of a group activity and is unable to protect himself, other group members must protect him from injury until he is once again able to take care of himself. Criminal liability attaches when a member who knows of the other student’ s helplessness breaches the duty and an injury results.