Legal Guide: Criminal Hazing Under California Law

Hazing¹ is a term referring to certain rituals or practices that fraternities, colleges and some professional teams engage in to initiate pledges, rookies or first year team members.

Hazing Under Penal Code 245.6

With regard to hazing usually, the incoming person or initiate has to perform some trivial task such as waking up very early and cleaning, getting food for the veterans, cross-dressing or singing silly songs in front of crowds.

At times, though, the hazing can be dangerous, especially if the conduct is physically exhausting or involves ingesting drugs or great quantities of alcohol.

Hazing has been practiced for decades if not hundreds of years and is considered integral to many organizations whose members often look back fondly on hazing as promoting comradeship and team unity.

It is often cited as needed to weed out undesirables who lack the commitment the team or organization is seeking in its members.

But when the ritual becomes physically hazardous to the individual or causes the serious bodily injury or death of another that is tied to the ritual activity, it becomes a specific statutory offense².

The California law embodied in PC 245.6 arose out of the death of a California college student in 2006 following a hazing incident and from similar deaths at fraternities around the country.

It is a “wobbler,” meaning that the DA has the discretion of charging the offenders with a misdemeanor or felony.

Hazing as a crime is found under California Penal Code Section 245.6:

Elements Of Hazing

To be convicted of hazing, the DA or state must prove each facet or element of the offense beyond a reasonable doubt. These elements are:

1. The activity was part of an initiation ritual into a student organization or body
2. The activity was likely to cause serious bodily injury
3. The hazing activity occurred at a school or school setting
4. The hazing activity was not a school sanctioned event or activity or part of an school’s athletic event³.

Requirement That It Be An Initiation Ritual

The hazing does have to be part of a ritual or process authorized by a school organization, which is usually a fraternity or sorority or athletic team.

If it is done as an initiation for an organization composed of only students but is not part of the school, then this statute is not applicable though other charges may be filed.

Also, the ritual must be for the purpose of joining the school organization and one in which that club, team or association has sanctioned or endorsed as a condition of joining.

If some members of the association or club decide to force some tasks of their own doing on some potential members that is hazardous or likely to lead to serious bodily harm, their actions are not covered under Penal Code 245 but may be subject to other criminal violations.

Examples Of Criminal Hazing

The following hazing practices could be considered as criminal if all other elements of the crime are met:

• Eating garbage
• Running for extended periods of time
• Forced to stand nude for hours in sub-freezing temperatures
• Extreme sleep deprivation
• Eating foods designed to induce vomiting
• Drinking and driving
• Forced drinking of copious amounts of alcohol
• Physical beatings
• Forced sexual penetration

Requirement Of Likely Serious Bodily Injury or Death (Felony or Misdemeanor)

Serious bodily injury is more than just causing some discomfort or causing a minor illness. It must meet the standard of causing a serious impairment of a bodily condition.

The following qualify as a serious bodily injury:

• Broken bone
• Serious disfigurement
• Injury requiring stitches
• Concussion or other head trauma
• Impairment of a limb
• Alcohol poisoning
• Organ damage
• Heart damage

It does not include demeaning or verbally abusing the pledge or freshman or otherwise causing emotional distress since the injury must be physical. The physical injury also may be to another person whom the association required or urged injury upon.

For instance, being told to physically attack a person not affiliated with the organization comes within the purview of the statute.

If the hazing is so mentally abusive that the individual commits suicide, then other charges may be considered but it may not be within the purview of the hazing statute.

It is still a misdemeanor if the hazing does not result in a serious injury so long as the activity was likely to cause serious bodily injury.

For instance, if you were forced to run nude for 10 miles in -10 degree conditions but only suffered a cold, the organization and its members could be charged with a misdemeanor.

Not A School-Sanctioned Event

Should the activity that led to the injury be part of an athletic event or as part of something that is endorsed or sanctioned by the school’s administration, it is not criminal hazing.

An example may be where a baseball coach tells his pitchers to immediately throw at an opposing batter if one of the players on the coach’s team is hit by a pitch.

This occurred within the game or match itself so that it is not considered as “hazing.”

Penalties For Misdemeanor Hazing

Should the injuries to the pledge or other person not be serious, the offenders face misdemeanor penalties:

• Up to one year in jail
• ((California Penal Code 245.6(c) – A violation of this section that does not result in serious bodily injury is a misdemeanor, punishable by a fine of not less than one hundred dollars ($100), nor more than five thousand dollars ($5,000), or imprisonment in the county jail for not more than one year, or both.)).
• A fine of $1,000 to $5,000⁴
• Jail and a fine

Penalties For Felony Hazing

If the resultant injury is a serious one, then the DA can charge the offenders with a misdemeanor or felony as this constitutes a “wobbler”⁵.

If a felony, the following sentence may be imposed:

• State prison of 16 months, 2 or 3 years⁶
• Possible sentence realignment under PC 1170(h)

For wobbler offenses, California introduced split sentencing or sentence realignment under PC 1170(h). For felony offenses that are not violent or which require registration as a sex offender, the offender may serve a sentence of incarceration in county jail. Split sentencing refers to spending a portion of your sentence in jail and the remainder on probation where you earn time or release credits. If you violate your probation, the credits are applied to reduce your time spent in jail for the violation.

The disadvantage of a spilt sentence on a felony conviction is that when you complete all conditions of your sentence, you cannot apply to reduce it to a misdemeanor and have it expunged as you could with a wobbler offense.

Like many injury matters, you can bring a civil action for personal injuries against the persons or organization responsible for your damages such as medical expenses, lost earnings, lost earning capacity and pain and suffering⁷.

PC 245(6)(e) specifically addresses this as being brought against any individual or agents of the organization that requested, authorized or endorsed the conduct.

Juvenile Offenders

Should any of the offenders be under the age of 18, then prosecution may be within the jurisdiction of the juvenile court unless the DA seeks to have the offenders charged as adults⁸.

This circumstance may occur if a fatality or permanent injury resulted from especially egregious activity.

Juvenile offenders are not imprisoned and their records are sealed upon adulthood. A juvenile disposition for hazing may include:

• Deferred entry of judgment for dismissal after completion of court-ordered program⁹.
• Informal probation¹⁰.
• Attendance at a facility for youthful offenders¹¹.

Legal Defenses

There are several defenses that may be raised to a charge of criminal hazing:

• The person injured or victim was not being initiated into the group
• The injury occurred at a school sanctioned event
• The injury that occurred was not from conduct likely to produce a serious injury but was caused by some other factor, or was simply an accident
• The injury was not serious
• The activity was not part of the normal initiation or ritual but done by individuals for other reasons unrelated to gaining admission

Expungement

If you were convicted of felony hazing under PC 245.6 and served state prison time, you are not eligible for expungement but may apply for a Certificate of Rehabilitation.

To receive an expungement, you or your attorney will do the following:

1. Move the court to grant early termination of your probation
2. Request that your felony conviction be reduced to a misdemeanor as this is a wobbler
3. File an application for expungement using Form CR-180, Petition for Dismissal

Appearances at an expungement hearing is rare except in cases the DA is contesting it. Once the court orders the expungement or dismissal, an order is sent to various criminal databases to delete your record.

1. CaliforniaPenal Code 245.6(b) – [Hazing Defined] “Hazing” means any method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other educational institution in this state. The term “hazing” does not include customary athletic events or school-sanctioned events. [↩]
2. Penal Code 245.6(a) – It shall be unlawful to engage in hazing, as defined in this section. [↩]
3. CaliforniaPenal Code 245.6(b) – See Above, Footnote 1 [↩]
4. See Same, Penal Code 245.6(c). [↩]
5. California Penal Code 245.6(d) – Any person who personally engages in hazing that results in death or serious bodily injury as defined in paragraph (4) of subdivision (f) of Section 243 of the Penal Code, is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170. [↩]
6. Penal Code 1170(h)(1)- Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years. [↩]
7. California Penal Code 245.6(e) – The person against whom the hazing is directed may commence a civil action for injury or damages. The action may be brought against any participants in the hazing, or any organization to which the student is seeking membership whose agents, directors, trustees, managers, or officers authorized, requested, commanded, participated in, or ratified the hazing. [↩]
8. Welfare & Institutions Code 602(a) – Except as provided in subdivision (b), any person who is under the age of 18 years when he or she violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.” [↩]
9. Welfare & Institutions Code 720(b) – The prosecuting attorney shall review his or her file to determine whether or not paragraphs (1) to (6), inclusive, of subdivision (a) apply. If the minor is found eligible for deferred entry of judgment, the prosecuting attorney shall file a declaration in writing with the court or state for the record the grounds upon which the determination is based, and shall make this information available to the minor and his or her attorney. Upon a finding that the minor is also suitable for deferred entry of judgment and would benefit from education, treatment, and rehabilitation efforts, the court may grant deferred entry of judgment. Under this procedure, the court may set the hearing for deferred entry of judgment at the initial appearance under Section 657. The court shall make findings on the record that a minor is appropriate for deferred entry of judgment pursuant to this article in any case where deferred entry of judgment is granted. [↩]
10. Welfare & Institutions Code Section 725 – After receiving and considering the evidence on the proper disposition of the case, the court may enter judgment as follows: (a) If the court has found that the minor is a person described by Section 601 or 602, by reason of the commission of an offense other than any of the offenses set forth in Section 654.3, it may, without adjudging the minor a ward of the court, place the minor on probation, under the supervision of the probation officer, for a period not to exceed six months. [↩]
11. Welfare & Institutions Code 730(a) – When a minor is adjudged a ward of the court on the ground that he or she is a person described by Section 602, the court may order any of the types of treatment referred to in Section 727, and as an additional alternative, may commit the minor to a juvenile home, ranch, camp, or forestry camp. If there is no county juvenile home, ranch, camp, or forestry camp within the county, the court may commit the minor to the county juvenile hall. [↩]