Illinois' Hazing Statute Challenged as Unconstitutional

Attorney Richard Kayne of Naperville (who has a 5-star Yelp review from a booty) has challenged Illinois' hazing statute on vagueness grounds.  

From the Daily Chronicle: "Defense attorneys for the five former Pi Kappa Alpha members accused in the November 2012 death of a Northern Illinois University freshman are claiming that their felony hazing charges are unconstitutional. *** Bogenberger died at the fraternity house with a blood-alcohol level of 0.351 percent after a non sanctioned party in which fraternity members and other guests ordered the pledges to drink vodka, authorities said."

 These guys know how to haze.

These guys know how to haze.

The Hazing Statute provides (720 ILCS 5/12C-50) as follows:

ยง 12C-50. Hazing.

(a) A person commits hazing when he or she knowingly requires the performance of any act by a student or other person in a school, college, university, or other educational institution of this State, for the purpose of induction or admission into any group, organization, or society associated or connected with that institution, if:

(1) the act is not sanctioned or authorized by that educational institution; and

(2) the act results in bodily harm to any person.

(b) Sentence. Hazing is a Class A misdemeanor, except that hazing that results in death or great bodily harm is a Class 4 felony.

"A statute violates due process on the basis of vagueness only if its terms are so ill-defined that the ultimate decision as to its meaning rests on the opinions and whims of the trier of fact rather than any objective criteria or facts." (Internal quotation marks omitted.)  People v. Einoder, 209 Ill. 2d 443, 451, 808 N.E.2d 517, 522 (2004).

I find the following problems with the statute:

(1) It uses the term "requires." Does this mean that the defendant must have made the victim's performance of the act a necessary condition for acceptance into the group? Or is it okay if the defendant strongly encouraged the victim to perform the act prior to being accepted into the group? If a frat guy manning the keg at a rush party points to a freshman and yells, "CHUG!", could that satisfy the first clause of the statute?

(2) The statute includes amorphous (and unnecessary) requirements that the victim be a student of some kind, and that the group or organization be "associated or connected" with that student's school. So if a freshman from the local community college wants to join a fraternity associated or connected with the state university (which happens all the time), apparently this law does not apply when that student suffers bodily harm or death as part of the initiation. Or does it?

(3) Finally, the statute has a serious causation problem. By requiring that the act "results" in bodily harm or death, the statute leaves itself vulnerable to all types of interpretations. Are we talking proximate cause, "but for" cause, or something else? If a freshman is made to drink lots of booze as part of frat initiation, and he then drives home drunk and crashes, where do we stand? If the sorority requires three slaps of the paddle as part of initiation, does that "result" in bodily harm? What about an annual fraternity-sorority dodgeball game on the quad that results in a bloody nose?

The first and third problems I've identified are the most problematic from a vagueness standpoint. For college students, a very grey area exists between being "required" to do something and choosing to do something under social pressures. And when alcohol is involved (which it usually will be in prosecutions under this statute), can we ever confidently determine what a drunk college student's bodily injury "resulted" from? And does the over-intoxication itself constitute a bodily injury?    

While I think that this statute has some serious problems, and it could be much clearer in its terms, I doubt it's unconstitutionally vague.