Lawyers in NIU hazing argue statute's constitutionality

Attorneys for five former fraternity members charged with hazing in the 2012 alcohol-related death of Northern Illinois University freshman David Bogenberger argued Thursday that the state's hazing statute is unconstitutional and the charges against their clients should be dismissed.

Defense attorney Jack Donohue, who represents Alexander Jandick of Naperville, argued the language is vague and too broad. According to the law, “a person commits hazing when he or she knowingly requires the performance of any act by a student or other person in a school ... for the purpose of induction or admission into any group and ... the act is not sanctioned or authorized by that educational institution; and the act results in bodily harm to any person. “

Referring to the words “any act,” Donohue insisted they “have no definition, no limits, no parameters” and provide no example of what constitutes hazing.

That makes the law subject to “unbridled discretion of interpretation” on the part of police and prosecutors, Donohue said.

DeKalb County Assistant State's Attorney Julie Visher argued the law is clear and its language doesn't alter its spirit.

“The law was enacted to prevent a 19-year-old from dying after a stupid pledge game,” she said.

The defendants knew requiring someone to ingest large amounts of alcohol to join a fraternity was a form of hazing and a behavior the university prohibits. Visher said.

Jandick; Steven Lipert, of Naperville; Omar Salameh, of Burbank; Patrick Merrill, of Boston; and James Harvey, of Northfield, were charged with the class 4 felony after 19-year-old Bogenberger, of Palatine, died following a Pi Kappa Alpha fraternity initiation.

Bogenberger was among 19 pledges who drank three to five 4-ounce glasses of vodka within 90 minutes as part of the initiation, according to a wrongful-death lawsuit filed last year by Bogenberger's family against the fraternity, several members and 16 female defendants. The unconsciousness pledges were left in various rooms at the fraternity house and members and other defendants were told not to call 911, the lawsuit alleges. Bogenberger was found dead the morning of Nov. 2, 2012. His blood alcohol content was 0.351, more than four times the legal limit.

Donohue cited statutes from other states pointing out references to recklessness, danger or physical or psychological harm. For the Illinois statute to be constitutional, it must be specific, he said.

“Endangered denotes danger. Reckless conduct denotes recklessness. 'Any act' denotes nothing,” he said.

Judge John McAdams will announce his ruling May 29.

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