S4 E5: Hazing Homicides

Military defense attorney Jocelyn Stewart talks about hazing deaths on college campuses and in the military, starting with the recent sentencing of a former Northern Arizona University fraternity leader after a pledge died of alcohol poisoning. She then goes back to Germany in 2006, when two soldiers died in hazing rituals fewer than six months and 60 miles apart: one in a Prince Hall Masonic initiation in Mannheim, where no one was prosecuted, and one in a Gangster Disciples initiation, which she prosecuted.

She explains why a person cannot legally consent to an aggravated assault, why she was not allowed to charge felony murder, how the Air Force and Army rules on gang membership differed, and why she believes hazing deaths are still treated differently depending on who is doing the hazing.

CBS News and NBC News have reported on the Northern Arizona University sentencing.

Jocelyn Stewart's law firm also defends service members stationed overseas. Read more about her work as a military defense lawyer for service members in Germany.

When someone dies in a hazing ritual, one of the first defenses people reach for is that the victim agreed to it. He knew it was coming. He showed up. He drank voluntarily. In this episode, Jocelyn explains why, in her experience as a prosecutor and defense lawyer, that argument does not hold up once a beating becomes an aggravated assault.

Can you consent to hazing?

Jocelyn's answer is no, not when the hazing amounts to an aggravated assault. She points to a 1997 military appeals case, United States v. Bygrave, 46 M.J. 491 (C.A.A.F. 1997), in which the court noted that lack of consent is not an element of aggravated assault. In other words, the government does not have to prove the victim objected.

"A person cannot, as a matter of law, consent to an aggravated assault," she says. In her view, military law is very clear on this, and civilian law is the same in every jurisdiction she has seen.

That is why she calls the reasoning given in one 2006 Army case, that the soldier had "consented" to the paddling, double talk.

What makes an assault "aggravated"?

The difference between a simple assault and an aggravated assault, Jocelyn explains, is the force or means used. The question is whether it was likely to cause death or grievous bodily harm.

One punch from an ordinary person generally will not get there. A weapon, such as a knife or a gun, often will. So can a sustained beating. Either way, she notes, proving it is going to require medical evidence.

How are hazing deaths charged?

Jocelyn walks through two of the options a prosecutor has when a hazing ritual ends in a death:

• Involuntary manslaughter. This requires a form of culpable negligence that resulted in the death.
• Felony murder. The military murder statute, Article 118, has several subdivisions. One covers a death caused while committing an underlying felony. Here, the prosecutor would need to prove the accused formed the specific intent to commit that underlying felony, such as the aggravated assault.

The difference is large, both in how the offense is alleged and in the punishment. In the case Jocelyn prosecuted, she says, felony murder would have carried a potential sentence of up to life without parole.

She also explains why a prosecutor might charge the underlying aggravated assault alongside the homicide: so that if the fact-finder is not convinced the beating caused the death, the assault itself can still be proven.

This is general education about how these cases work, not legal advice about any particular situation.

The members section covers the case she prosecuted, why she was told she could not charge felony murder, and how the defense chose to fight it.

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More Episodes You Might Like

• S2 E2: Hazing on Miramar
• S1 E1: Gangster Disciples, Part 1 of 2
• S1 E2: Gangster Disciples, Part 2 of 2

Topics: Hazing & Homicide · Murder & Homicide Cases