Why governments should be cautious about criminalising hazing

Not-for-profit group End Rape on Campus recently released a report detailing horrific incidents of “hazing” in residential colleges. Hazing essentially describes the ritual humiliation of newcomers to college life.

Just some examples of hazing described in the report include students:

• being “encouraged” to drink beer that has been poured onto another resident’s genital region

• exposing each other’s sexual activity online with graphic and embarrassing photos, and

• being locked in a bathroom and having vats of dead fish thrown on them.

This report marks an important milestone, because the media interest in the release of this report creates an opportunity for a turning point. A unified public and private condemnation of hazing in Australia.

Much as Rosie Batty brought family violence into the spotlight, and much as the #metoo movement unearthed the prevalence of sexual harassment and assault, the Red Zone report provides us with a unique opportunity to address yet another of society’s unaddressed shames.

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The fact that male students are habitually masturbating into female students’ bathroom products is unacceptable. Such behaviours are outdated, misogynistic, and cruel.

Most of the recommendations in the report are both sensible and uncontroversial. The authors recommend, for example, greater oversight of student residences, and more transparency and dialogue about college culture.

But they also recommend that hazing be criminalised across Australia, in particular:

the act of requiring an individual to undergo any act which is likely to cause bodily danger or physical punishment to any student or other person, as a precondition of joining or participating in a student group or organisation.

This recommendation should be approached with considerable caution. While it might garner significant political points, making a new criminal law is not always the best response to undesirable behaviours.

Criminal law as a response to undesirable behaviours

The criminal law is the state’s most coercive tool. Used to its full extent, it can lead to you being arrested, subjected to a lengthy and expensive trial, having your liberty revoked for years, and suffering a life-long stigma. The criminal law is a necessary part of a fully functioning liberal democracy, but it should be used with extreme caution.

Research has repeatedly proven the effectiveness of a criminal justice system is inextricably linked to whether it is perceived as legitimate, fair and coherent. When the criminal law is too broad, too narrow, or inconsistent, it loses legitimacy. It also loses legitimacy when new laws are introduced that are purely symbolic and add no real substance to existing laws.

It is questionable, for example, whether the new crimes of drive-by shooting, home invasion, and carjacking add much to the criminal law. Many of these behaviours were already captured by crimes such as attempted murder, reckless conduct endangering serious injury, aggravated burglary, and armed robbery.

There is an often forgotten criteria that should be met before any new law is introduced. Specifically: is the targeted behaviour already a crime? If so, is the answer really to criminalise it again, or is the more appropriate response to dedicate more resources to policing existing crimes?

When the Red Zone report recommended introducing specific criminal laws that target hazing in Australian universities, it neglected to consider whether those behaviours might already be criminal.

Hazing laws in the United States

Hazing is certainly a crime in the United States. It has been specifically criminalised in all but six US states for decades now.

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In Texas, for example, it is a crime to intentionally or recklessly engage in an act, directed at a student, which endangers their mental or physical health or safety, for the purpose of pledging or initiation into a student organisation.

In New York, it is a crime to intentionally or recklessly engage in conduct, during another person’s initiation or affiliation with an organisation, which creates a substantial risk of physical injury.

And in California, it is a crime to engage in any method of initiation into a student organisation that is likely to cause serious bodily injury to a former, current or prospective student.

To prove these crimes, the prosecution would have to establish:

1. the defendant intentionally or recklessly engaged in conduct
2. such conduct created a substantial or real risk of injury or serious injury to the victim
3. the victim was a student
4. the conduct was part of an initiation or affiliation with a student organisation.

Except for the requirement the victim be a student being initiated into a student organisation, this looks very much like a number of offences that already exist around Australia.

Is hazing already a crime in Australia?

Most jurisdictions in Australia already make it a crime to intentionally or recklessly engage in conduct that creates a substantial or real risk of serious harm, including both physical and mental harm (such as South Australia and the Northern Territory).

Even more relevant, Queensland has criminalised torture, which is defined as “the intentional infliction of severe pain or suffering on a person by an act or series of acts”, and pain or suffering is then defined as including “physical, mental, psychological or emotional pain or suffering”.

Further, in addition to there already being a number of criminal laws that would capture most of the hazing behaviours described in the Red Zone report, there are also a number of issues with the way the proposed offence is framed.

Looking at their proposed offence, the prosecution would need to prove:

1. the defendant required the victim to engage in an act
2. the victim was a student
3. the victim engaged in the required act
4. the act was part of initiation into a student group or organisation
5. the act was likely to cause bodily injury or physical punishment.

First, it is peculiar that requiring someone to do something that is likely to cause them bodily injury would only be criminal if it occurs in the context of a student initiation ritual. Does this make such behaviours acceptable in other contexts?

Second, there are many forms of hazing that would not be captured if the legislation was limited to circumstances in which the victim suffered bodily injury or physical punishment, particularly emotional and psychological torture.

And third, it would be somewhat unorthodox to ask the prosecution to establish that a defendant required a victim to do something. Such a requirement would raise serious questions of free will and autonomy, issues which are not sufficiently addressed in the report. In many US states, for example, legislation specifies that people cannot consent to participating in initiation rituals that would constitute hazing.

The Red Zone report will hopefully herald a new era. Hazing is a blight on society. And the criminal law may well be the appropriate response to hazing behaviours.

But in an age where the criminal law is treated as both a panacea for society’s woes and a constant failure (while it is, in fact, neither), much more consideration is needed before any new criminal laws are introduced.

First and foremost, we should determine what exactly the wrongful and harmful behaviour we want to prohibit is. Once that has been identified, we should determine whether that behaviour is already criminal. If so, we should consider whether we can better utilise the laws we already have. And if not, we should figure out how to write a law that adequately captures the targeted behaviour, and goes no further.

Paul McGorrery does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.