Tuesday, July 21, 2009

Utah Hazing Law Does Not Stick

Prosecutors make splash with hazing charges, but they're not sticking
Michael Stark’s family settles with Greek chapters after pledge's alcohol death

By Brian Maffly

Six months after Cache County filed hazing charges against 12 Utah State University students and their Greek-letter societies, no one stands convicted of hazing in connection with the November alcohol poisoning of fraternity pledge Michael Starks.

First District Judge Thomas Willmore has meted out punishment, including four jail sentences, but for offenses other than hazing -- the crime of encouraging or inducing someone to engage in humiliating or dangerous behavior as a condition for membership in an organization.

Willmore is fielding motions to dismiss by the four remaining defendants, raising the possibility that the state's first major hazing prosecution will result in no hazing convictions. But prosecutors are not dismayed.

"Our goal has been to bring focus on the issue of underage binge drinking and the prosecution has been successful in doing that," said Tony Baird, Cache County's chief criminal prosecutor. "We successfully prosecuted the person who had bought the bottle [of vodka], who brought the bottle, who had the bottle and then threw the bottle away."

Still, the Starks case illustrates how hard it can be to stretch context-based criminal laws, such as the hazing statute, to fit the facts of a real-life situation.

"I would like to see some of these hazing charges stick. I am grateful Judge Willmore sees this case for what it is," said Starks' brother George, a Salt Lake City coffeehouse owner and book publisher. "You can't get any clearer case than Michael's that's a hazing. The statute needs to be clarified."

Starks, an 18-year-old freshman, was pledging at Sigma Nu Fraternity when his would-be brothers voted him worthy of "capture" by the sorority sisters next door at Chi Omega. In the company of eight teenaged sorority women, Starks slugged a toxic dose of vodka at an off-campus Logan home and succumbed a few hours later while sleeping at the Sigma Nu house.

The Starks family has reached an out-of-court civil settlement with Sigma Nu and Chi Omega. The May 5 settlement bars either side from discussing its terms and circumstances, said the Starks' lawyer, Charles Thronson.

Of the 12 students charged with hazing, three were dismissed, four pleaded guilty to other offenses -- furnishing alcohol to a minor and obstruction of justice -- and sorority member Sadie Green entered a plea in abeyance to hazing that will be expunged when she completes probation.

The remaining four argue that their conduct, as alleged by the prosecution, doesn't fit the elements of hazing as defined by Utah law. Meanwhile, Willmore dropped a felony hazing charge against the Sigma Nu and Chi Omega chapters because their national offices revoked their charters, rendering further prosecution moot.

Willmore sentenced a 13th student, 22-year-old Erin Anthony, on July 13 to eight days in jail for buying the vodka consumed at the capture event. On July 20, he is scheduled to sentence Brittany Packham, 20, for bringing the liquor.

Some defense lawyers initially planned to challenge the charges on the grounds that Utah's hazing statute is unconstitutionally vague. Its language is so broad the law could be interpreted to criminalize legitimate aspects of collegiate life, even basketball practice.

"It may punish more than it was intended and may infringe on some constitutionally protected activity," said Chi Omega's lawyer, Mark Moffat. "I dare say there are individuals involved in rigorous workouts who are in violation of this statute."

Was booze part of the plan?

But Moffat and other lawyers found easier ways to attack the charges. For example, Starks' initiation was not contingent upon his participation in the capture event and many of those charged said they did not know alcohol was going to be provided, lawyers say.

Sigma Nu president Cody Littlewood claims he did not participate in the fraternity vote to set up Starks for the capture, nor did he "authorize" the consumption of liquor.

"It wasn't a pledge event in furtherance of the organization," Littlewood's attorney Clayton Simms argued before Willmore at a hearing last April. "Mr. Littlewood would never have condoned an event where Mr. Starks would be encouraged to drink a large amount of alcohol."

However, two Sigma Nu members, Colton Hanson and John Lynn, told police they went through the capture last year and became very drunk at the hands of the sorority sisters, prosecutors say.

"Of course, it's a sponsored activity. It had been happening every year," said Tony Baird, Cache County's chief criminal prosecutor, in court. "You have this history of this ritual always involving alcohol."

Chi Omega sister Whitney Miller, who is serving 30 days in jail for supplying the vodka, told police she coordinated the capture of Starks and fellow pledge MacKenzie Perry, 21, with Littlewood and Christopher Ammon, another Sigma Nu officer. She was instructed to not let "Mack drink too much" because of his small size, according to court papers.

"If there wasn't supposed to be any alcohol, why are they telling her 'Don't let one of them drink too much?'" Baird said.

Willmore has until early August to rule on Littlewood's motion and is fielding similar motions brought by three sorority defendants -- McKell Miner, Alexandra While and Mallory Mitchell. The women say they had nothing to do with the liquor. The state is inappropriately extending culpability to people who were present but did not participate in the drinking, said Miner's lawyer, Jeremy Delicino.

"She asked to leave when the alcohol came out. She didn't consume any alcohol and had to wait for a ride," Delicino said.

Some defense lawyers have blamed Starks for his fate, citing evidence he had been drinking heavily last fall and even earlier, an assertion the Starks family disputes as "slanderous."

If the freshman had a problem with alcohol, it was something he developed under the influence of his new fraternity friends, George Starks said. Michael was the youngest of six in a close-knit family.

"He was just coming out of his shell. He was such a mama's boy," George said. "He was never in a party atmosphere until he got to college. He got really swept up in it. He fell in love with that. He wanted to do everything he could to be part of their organization and lead it."

Arrin Newton Brunson contributed to this report.

Michael Starks, 18, died Nov. 21 after drinking vodka at a fraternity ritual, Cache County prosecutors allege. Twelves Greek members and their chapters, Sigma Nu fraternity and Chi Omega were charged with hazing and related offenses in connection with the tragedy. A 13th student was charged only with providing alcohol.

Where the defendants stand

  • Cody Littlewood, 20, Sigma Nu president, charged with hazing. Motion to dismiss pending.
  • McKell Miner, 19, Chi Omega member, charged with hazing. Motion to dismiss to be argued Oct. 1.
  • Alexandra White, 20, Chi Omega member, charged with hazing. Motion to dismiss to be argued Oct. 1.
  • Mallory Mitchell, 20, Chi Omega member, charged with hazing. Motion to dismiss to be argued Oct 1.
  • Whitney Miller, 20, Chi Omega member, pleaded guilty to furnishing alcohol, hazing dismissed. Had multiple prior alcohol violations. Sentenced to 30 days in jail.
  • Brittany Packham, 20, Chi Omega member, pleaded guilty to furnishing alcohol to a minor, hazing dismissed. Sentencing set for July 20.
  • Erin Anthony, 22, USU student, charged with furnishing alcohol to a minor. Pleaded guilty and will be sentenced Monday.
  • Christopher Ammon, 20, Sigma Nu officer, pleaded guilty to furnishing alcohol, hazing dismissed. Fourteen days in jail.
  • Grant Barney, 23, Sigma Nu member, pleaded guilty to obstruction of justice charge, hazing count dismissed. Eight days in jail.
  • Sadie Green, 19, entered a plea in abeyance to hazing. No jail.
  • Timothy Weber, 25, Sigma Nu's vice president, charges dismissed
  • Brittany Bell, 21, Chi Omega member, charges dismissed
  • Cecily Kiss, 19, Chi Omega member, charges dismissed

Hazing and the law

Utah is one of 44 states with criminal hazing statutes, many passed in the 1970s. The Utah law makes it a crime to "intentionally, knowingly, or recklessly commit an act or cause another to commit an act that endangers the mental or physical health or safety of another... and is for the purpose of initiation, admission into, affiliation with, holding office in, or as a condition for continued membership in any organization." The law specifically points to physical brutality, consumption of liquor, and subjecting people to sleep deprivation, social isolation and extreme embarrassment. Willing participation of the victim is no defense.
Copyright 2009 The Salt Lake Tribune.
http://www.sltrib.com/News/ci_12872495