In re Khalil H.

80 A.D.3d 83, 910 N.Y.S.2d 553
CourtAppellate Division of the Supreme Court of the State of New York
DecidedNovember 9, 2010
StatusPublished
Cited by5 cases

This text of 80 A.D.3d 83 (In re Khalil H.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Khalil H., 80 A.D.3d 83, 910 N.Y.S.2d 553 (N.Y. Ct. App. 2010).

Opinion

[85]*85OPINION OF THE COURT

Chambers, J.

Introduction

Hazing, although encompassing different forms of conduct, is commonly understood to involve an initiation process which humiliates, degrades, abuses, or physically endangers persons who desire membership in an organization (see Webster’s Third International Dictionary 1041 [1986]; see also People v Lenti, 44 Misc 2d 118, 121-122 [1964]). Elements of hazing can be traced back to the Middle Ages at European universities and was possibly rooted in ancient Greek civilization (see Kuzmich, Comment, In Vino Mortuus: Fraternal Hazing and Alcohol-Related Deaths, 31 McGeorge L Rev 1087, 1088-1089 [2000], citing Symposium, The Works of Plato [Irwin Edman ed. & Benjamin Jowett trans., The Modern Library 1956]). Today, hazing occurs in varying settings ranging from college fraternities to the military (see 10 USC § 6964; Maines v Cronomer Val. Fire Dept., 50 NY2d 535 [1980]; Vaughn v Pool Offshore Co., a Div. of Pool Co. of Tex., 683 F2d 922, 923-924 [1982]). Hazing activities can range from relatively innocent and innocuous conduct to abusive and lethal conduct. As noted in the often-cited case, People v Lenti (44 Misc 2d at 122), organizations and affiliations which engage in hazing “have never suffered for ideas in contriving new forms of hazing.”

In this case, we primarily address whether a high school gang is an “organization” within the meaning of New York’s hazing statutes (Penal Law §§ 120.16, 120.17) and whether a complainant can consent to being hazed.

The History of New York’s Hazing Legislation

On February 20, 1894, the freshman class of Cornell University gathered for its annual banquet (see People ex rel. Taylor v Forbes, 143 NY 219, 224 [1894]). While the banquet was in progress, students from the sophomore class released chlorine gas into the banquet hall, resulting in injuries to some of the freshmen and the death of a cook (id. at 224).

Just a week after this incident, State Senator Henry J. Coggeshall proposed legislation to criminalize hazing committed by college students as a misdemeanor-level offense (see The Greater New-York Bill; Passed by the Senate as it Came from the House, New York Times, Feb. 28, 1894). In 1894, the law was enacted, making New York the first state in the Union to criminalize [86]*86hazing (see McKenzie v State, 131 Md App 124, 130 n 3, 748 A2d 67, 70 n 3 [2000]). The statute made it “unlawful for any person or persons to engage in or aid or abet what is commonly called hazing, in or while attending any of the colleges, public schools or other institutions of learning in this state,” and provided for a fine of up to $100 and/or a period of imprisonment of one year (L 1894, ch 265, codified as former Penal Law § 1030 by L 1909, ch 88).

Seventy years later, in April 1964, not unlike the scenario in this case, four students struck five pledges “about the body and face with clenched fists, open hands, forearms and feet” as part of an initiation ritual into a fraternity during “Hell Night” (People v Lenti, 46 Misc 2d 682, 683 [1965]). The four students were charged with hazing under former Penal Law § 1030, as well as assault in the third degree (see People v Lenti, 46 Misc 2d at 683). Although the court found the evidence presented to the grand jury to be legally sufficient (see People v Lenti, 44 Misc 2d 118 [1964]), following the defendants’ motions for a trial order of dismissal at the close of the People’s case, the court granted the motions and dismissed the indictment (see People v Lenti, 46 Misc 2d at 683-684, 688). Finding the statute to be “vague” and “ambiguous,” the court raised concerns similar to those raised in the instant case as to whether the pledges should be considered accomplices as a matter of law or whether they consented to the hazing (id. at 684). The court urged the Legislature to write a more “enforc[ea]ble statute,” suggesting that those who are hazed should “not be deemed accomplices as a matter of law,” nor should their consent be a defense to prosecution (id. at 686-687).

In 1983, members of the Legislature responded by proposing legislation to address the concerns raised in Lenti, as well as other deficiencies in the statutory scheme' that impeded prosecution of hazing crimes (hereinafter the 1983 bill). The drafters of the 1983 bill proposed amending Criminal Procedure Law § 60.22 to abolish consent as a defense to hazing crimes and the corroboration requirement so that hazing victims would not be considered accomplices (see Mem of Assemblyman Harenberg in Support of L 1983, ch 716, 1983 NY Legis Ann, at 311-312). In addition, the proposed bill expanded the reach of the Penal Law to cover all persons engaging in hazing activities, not just students in institutions of learning (id. at 312). However, while the Legislature adopted the Penal Law provision that expanded the law to cover “any organization” involved in hazing activi[87]*87ties, it did not approve the proposed amendments to the Criminal Procedure Law (L 1983, ch 716, adding Penal Law § 120.16).

In 1988, the Legislature amended the hazing statute by splitting it into two degrees (hereinafter the 1988 bill) (see Penal Law §§ 120.16, 120.17).

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Cite This Page — Counsel Stack

Bluebook (online)
80 A.D.3d 83, 910 N.Y.S.2d 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-khalil-h-nyappdiv-2010.