The Psychology and Law of Hazing Consent, 97 Marq

Marquette Law Review Volume 97 Article 3 Issue 1 Fall 2013

The syP chology and Law of Hazing Consent Gregory S. Parks Wake Forest University School of Law

Tiffany F. Southerland Villanova University School of Law

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Repository Citation Gregory S. Parks and Tiffany F. Southerland, The Psychology and Law of Hazing Consent, 97 Marq. L. Rev. 1 (2013). Available at: http://scholarship.law.marquette.edu/mulr/vol97/iss1/3

This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. 34306-mqt_97-1 Sheet No. 5 Side A 01/13/2014 11:22:05 PM

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** ** ...... 24 OUTHERLAND S

ERSPECTIVE F. P IFFANY T AND AND

* SYCHOLOGICAL ...... 7 P

A ARKS

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HAZING CONSENT S...... 2 ONSENT ) 11/25/2013 ...... 53 C MARQUETTE MARQUETTE LAW REVIEW ONSENT ELETE C D OT OT REGORY N AW OF AW G O L THE PSYCHOLOGY AND LAW OF (D A. Consent in Criminal Law: A General Approach ...... 7 ...... Approach A. Consent in Criminal Law: A General 11 ...... A General ApproachB. Consent in Civil Law: 15 ...... C. Consent in Hazing Law G. Organizational Prestige ...... 47 ...... G. Organizational Prestige 50 ...... H. Symbolic Interaction A. Escalation of Commitment ...... 24 ...... A. Escalation of Commitment 28 ...... B. Groupthink 31 ...... C. Evolutionary Psychology 34 ...... D. Ingroup-Outgroup Dynamics 42 ...... E. Need for Esteem 44 ...... F. Obedience to Authority

AZING ONCLUSION 10 HE C H For years, the law has grappled with the extent to which an individual

NTRODUCTION T M K

ARKS C Y I. can consent to harmful physical contact. This has never been more dent evi- than in the area of hazing. Courts have fallen on both sides of divide, often enough this speculating about the mental state of the alleged hazing victim. The question is often whether the individual had the psychological wherewithal to resist situational or contextual demands placed on him or her. In this Article, the authors provide clarity to how the law has thought about this issue and how it range of psychological theories and empirical research. should think about it in light of a IV. III. **Associate Director of Admissions, Villanova University School of Law. Law. of Law. of School School University University Villanova Forest Wake Law, Admissions, of of Director Professor *Assistant **Associate Volume 97 Fall 2013 Number 1 P

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Autop- An ini-

3 ANNETT ANNETT

, Dec. 16, 2011, 5 SSOCIATED , G , A , Nov. 29, 2011, ERVICE S RESS [97:1 [97:1 P ]. EWS N The medical examiner’s examiner’s medical The 8

Autopsy ProQuest, Doc. No. 912380698; ANNETT ANNETT SSOCIATED SSOCIATED note 1. 1. note , A , G note 2. NewsBank, Rec. No. Rec. c502d9622d494a9935508b NewsBank, Rec. No. D9R7V2NO0; Brent Kallestad,

supra The Georgia native had become anx- ,

available available at Vomit in FAMU Student’s Mouth Before He Dies 1 supra , NTRODUCTION I

ProQuest, Doc. No. 905839615. 905839615. No. Doc. ProQuest, I. FAMU Drum Major Died Within One Hour of Hazing available at NewsBank,

Autopsy MARQUETTE LAW REVIEW LAW MARQUETTE , Dec. 22, 2011, Law enforcement officials also believed some form form some believed also officials enforcement Law Autopsy: available at available 6 note 2; 2; note Hazing Rumors Surround Death of Fla. Student Attorney Says Suit Planned in FAMU Band FAMU Death in Band Attorney Planned Suit Says ) 11/25/2013 note 2. available at Champion endured such severe blows during the inci- ]. note 1. 1. note , Dec. 1, 2011, , 1, 2011, Dec.

supra ERVICE 9 Hazing Warnings Hazing Ignored Warnings ELETE S supra D supra , RESS OT OT P EWS N ProQuest, Doc. No. 912012529 [hereinafter [hereinafter No. 912012529 Doc. ProQuest, N O

, Nov. 22, 2011, 22, 2011, , Nov. (D

Flemming, Paul Flemming, Nov. Nov. 25, 2011,

, NewsBank, NewsBank, Rec. No. 0ef37ebd103d533dbf5020cbc498970b [hereinafter Kallestad, 10 . Id. . .Autopsy . 5 6. Jordan Culver, 7. Frisaro, 8 On November 19, 2011, Robert Champion, a twenty-six-year-old 9 2 By Tuesday, November 22, rumors had already circulated on the 4. Mike Schneider & Gary Fineout, 3. Kallestad, 1. Freida Frisaro, Fla. A&M Drum Major’s Death a Homicide

SSOCIATED ANNETT RESS ERVICE ARKS clarinet player and drum major in Florida A&M University’s (FAMU) Marching 100 band, collapsed on a charter bus parked lando outside hotel, an following Or- a band performance at a football game between FAMU and Bethune-Cookman. 79be7f82eb. 79be7f82eb. FAMU campus and social Champion’s media death. that hazing had played a part in ble at ing Ignored Warnings tial emergency caller told the dispatcher that Champion had been vomit- tial emergency ing and that “[h]is eyes [were] open but [he was] not responding.” of hazing to have occurred before the 911 emergency call was placed. ious, complaining of shortness of breath and apparently failed eyesight, and been had vomiting before ultimately losing consciousness. sy: FAMU Band Director: Hazing Warnings Ignored A available at S P 2 P second caller told the dispatcher that Champion was “cold.” that second caller told the dispatcher G 9:45 p.m. and was later pronounced dead at a nearby hospital. Ultimately, suspicions that hazing played a role were in confirmed when Champion’s Champion’s death death was ruled a State homicide Medical by Examiner’s Office the in Orlando. Champion was nonresponsive when authorities arrived approximately at suffered during a hazing incident involving some members of FAMU’s Marching 100. office found that Champion’s death resulted from blunt-force trauma 34306-mqt_97-1 Sheet No. 5 Side B 01/13/2014 11:22:05 01/13/2014 B Side 5 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 6 Side A 01/13/2014 11:22:05

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ANNETT ANNETT G

, SSOCIATED Four Four days , A

13 , Feb. 9, 2012, note 1. 1. note supra , ERVICE Ultimately, White re- S

15 EWS In February of 2012, the FAMU FAMU the 2012, of February In 3 3 N Id. NewsBank, Rec. NewsBank, f6a3310a4251b0 No. ProQuest, Doc. No. 912012484. Doc. No. 912012484. ProQuest, 13 Charged in Hazing Death of Fla. Band ANNETT NewsBank, Rec. No. D9RC6CQO0. In De- In D9RC6CQO0. No. Rec. NewsBank, note 10. Initially following Champion’s death, death, Champion’s following Initially 10. note , G available at available available at available supra Hazing Warnings Ignored Warnings Hazing ProQuest, Doc. No. 1011642906. 1011642906. No. Doc. ProQuest, available at NewsBank, NewsBank, Rec. No. 0d5debc3da823324c335e16f5261279b; HAZING CONSENT HAZING See FAMU President Postpones Work of Hazing Task Force Task Hazing of Work Postpones President FAMU See available at available , May 2, 2012, 2012, May 2, , The autopsy further revealed that Champion had had Champion that revealed further autopsy The Dec. 18, 2011, 2011, 18, Dec.

10 , 12 note 2; Mike Schneider, Schneider, Mike 2; note note 2. 2. note RESS Florida A&M President Resigns in Wake of Scandal Gov. Scott Repeats Call for Florida A&M President to Step Aside White argued that he had repeatedly tried to take P ) 11/25/2013 note 1; Kallestad, Kallestad, 1; note note 6; Schneider, available at Dec. Dec. 2, 2011,

, supra supra 14 ERVICE ELETE , 3 Charged in Hazing Death Were Not Enrolled at Florida A&M S supra Toxicology tests revealed no traces of drugs or alcohol in in alcohol or drugs of traces no revealed tests Toxicology supra D , May 8, 2012, 2012, 8, , May RESS 11 P OT OT EWS N

SSOCIATED N O , A (D ERVICE

ProQuest, Doc. No. 920882621. No. Doc. 920882621. ProQuest, . Id. S , , July 12, 2012, 10 11. Flemming, 12 13. Culver, 15. Frisaro, 16. Gary Fineout, 14. Bill Cotterell, 10. Flemming, Immediately following Champion’s death, FAMU President James M K SSOCIATED ANNETT EWS RESS ARKS C Y 62a27873387f42151f. 62a27873387f42151f. Ammons vowed to convene an independent task force to investigate policies at successful other colleges and anti-hazing universities and make recommendations as to how to eliminate hazing on the FAMU campus. A measures against hazing within the FAMU Marching 100 and had been backed not by the university’s administration. Jennifer Portman was later reinstated and placed on administrative leave after the Florida Department of Law Enforcement requested that hold the on any disciplinary actions during its investigation into Champion’s university put a beating death. after Champion’s death, Ammons fired band director Julian White who able at Ammons suspended all of the Marching 100’s appearances and performances, and the band’s immediate future became unclear. G Champion’s system. P N

2013] 2013] dent that he bled out into his soft tissue, particularly in his back, chest, shoulders, and arms. P Member been vomiting profusely and died within an hour of the time he suffered the injuries. cember, however, Ammons decided to postpone the task force so that “the school could fully cooperate with investigations by the Florida Board of Governors, Office Orange and Florida County Department of Law Sheriff’s Enforcement.” Florida A&M Selects Anti-Hazing Committee Board Board of Trustees appointed seven experts to the independent task force. Jennifer Portman, Several weeks later, Ammons suspended all of the Marching 100’s students, some 2,000 FAMU addressed pearances and performances and ap- tired when it was discovered that many of the Marching 100’s members (three of whom were allegedly involved in Champion’s were not students at FAMU and were not hazing enrolled in any band classes. death) 34306-mqt_97-1 Sheet No. 6 Side A 01/13/2014 11:22:05 01/13/2014 A Side 6 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 6 Side B 01/13/2014 11:22:05 M K PM

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The The 28 Accord- In 1998, 1998, In

19 24 Twenty or or Twenty 21 [97:1 [97:1 note 1. 1. note

Three FAMU Band Members 18 Petitions pledging to end end to pledging Petitions Three years later, Marcus supra 17 , ProQuest, Doc. No. 910500964. 910500964. No. Doc. ProQuest,

NewsBank, Rec. No. D9REO17O0 NewsBank, NewsBank, Rec. No. D9RJTGMO0; Luckey’s beating occurred occurred beating Luckey’s 22 20 note 17. 17. note FAMU Student Leaders Call for an End to

note 10. 10. note ]. 23 available at available available at Attorney: FAMU Student Hazed Could Barely She was beaten in two separate inci- separate two in beaten was She supra available available at , 26 supra note 20; John Tkach, note 20. 20. note note 20. 20. note note 20. 20. note Hazing Warnings Ignored Warnings Hazing supra supra supra supra , Dec. 6, 2011, MARQUETTE LAW REVIEW LAW MARQUETTE Hunter was a freshman clarinet player and, like , Dec. 13, 2011, RESS

FAMU Student Leaders FAMU Student P ) 11/25/2013 , Dec. 13, 2011, at C11, C11, at 2011, 13, , Dec. 25 note 1. 1. note note 6; Brent Kallestad, Kallestad, Brent 6; note RESS note 6; Schneider, Schneider, 6; note note 24. 24. note 24. note P FAMU Leaders Student FAMU ELETE supra supra supra ODAY supra supra D T

note 1; Kallestad, OT OT N

SSOCIATED SSOCIATED O The first, she said, occurred when leaders of the Red Dawg Or- Dawg Red the of leaders when occurred said, she first, The SSOCIATED SSOCIATED , USA supra (D

27 , A . Id. 10 , A 19. Culver, 18. Kallestad, 20. Greg Bluestein & Gary Fineout, On October 31, 2011, and November 1, 2011, just weeks before the 17. Culver, 25. Tkach, 26. Bluestein Fineout, & 27. Tkach, 28. Bluestein Fineout, & Hazing within the FAMU Marching 100 is said to have begun as ear- 21. Bluestein Fineout, & 22. Frisaro, 23 24. Bluestein & Fineout, ARKS hazing incident that resulted in Champion’s death, Bria Shante Hunter “Red Dawg Order,” into the her initiation severely during was beaten so a band clique for Georgia natives, that she could barely walk. [hereinafter Kallestad, ing to authorities, Hunter’s pain became so unbearable that she went to the hospital where she was told she had a broken thighbone and blood clots in her legs. during initiation into a band clique known as “The Clones.” Walk ly as the 1950s and has generally been associated groups with within the band entry rather than into entry into the sub- band itself. Hazing

4 reaffirming FAMU’s commitment to ending the “conspiracy of silence” that surrounds hazing practices at the school. P clarinet player Ivery Luckey was hospitalized after mately being 300 hit times approxi- with a wooden paddle. der suspected that she was trying to get out of a group meeting. second incident occurred when she was unable to accurately answer hazing were circulated throughout the audience. throughout the circulated hazing were Parker was hospitalized after suffering kidney damage being beaten with a wooden paddle. resultant from so “band members were suspended, and Luckey sued the state Board of Regents,” ultimately settling out of court. DeKalb High School in Georgia. Champion, a leader in the FAMU band and graduate from Southwest dents. Frisaro, Charged 34306-mqt_97-1 Sheet No. 6 Side B 01/13/2014 11:22:05 01/13/2014 B Side 6 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 7 Side A 01/13/2014 11:22:05

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First, First, IRE 35 supra W

, May 23, 2012, , CNN RESS P Harris was charged

32 Both times, Hunter was was Hunter times, Both SSOCIATED 5 5 29 Students who fell were were fell who Students 36 , A note 36. Correct answers garnered a moment of re- of moment a garnered answers Correct 39 supra HAZING CONSENT HAZING

40 note 10. 10. note 10. note note 10. 10. note FAMU Pledges Reforms After Report on Hazing ) 11/25/2013 NewsBank, Rec. No. 1359053358; Kyle Hightower & Mike Schneider, Schneider, Mike & Hightower Kyle 1359053358; No. Rec. NewsBank, After Champion’s death, three band members were ar- supra supra supra The other ritual, called “the hot seat,” involved a pil- a involved seat,” hot “the called ritual, other The

38 ELETE 31 The other two men, nineteen-year-old Aaron Golson and and Golson Aaron nineteen-year-old men, two other The D 33 According to one witness, large band members positioned positioned members band large witness, one to According OT OT 37 N NewsBank, NewsBank, Rec. No. 90333c02d7e6ce06e77e129b20233957; Schneider,

O available at (D

. Id. . Id. . Id. . Id. . Id. . Id. . Id. 10 34 The lawsuit against thirteen members of the famed FAMU March- According to Champion’s friends and family, he was a strong oppo- 37. Schneider, 38. Hightower Schneider, & 39. Schneider, 40 36. David Ariosto, 29 30 31 32 33 34 35. Schneider, M K ARKS C Y ing 100 described two kinds of hazing that took place on the bus. twenty-three-year-old twenty-three-year-old Sean Hobson, were charged with hazing and battery. rested and charged for Hunter’s beating, which occurred off-campus at the apartment of James Harris stopped the other who two men from claimed beating Hunter. to have, at one point, struck across the legs with fists, metal rulers, and notebook binders. 24, 2013, Band Mates Say FAMU Victim Volunteered to Be Hazed forced to answer questions. lowcase being placed over the victim’s nose and mouth while he was in the ritual known as “Crossing Bus C,” from students the front ran of the bus down to the the back while aisle other students stood on the sides beating, slapping, and kicking them. available at 10.

2013] 2013] questions regarding the history of the clique. P with hazing. lief; incorrect answers meant breathe in between. another question with no chance to kicked and stomped and then dragged back to the start front over. of the bus to Asked why band members took part in hazing rituals, Hunter answered, “[s]o we can be . If accepted . . . you don’t do you’re anything, lame.” then, it’s like themselves at the back of the bus to make most the difficult. victim’s final steps the 34306-mqt_97-1 Sheet No. 7 Side A 01/13/2014 11:22:05 01/13/2014 A Side 7 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 7 Side B 01/13/2014 11:22:05 M K PM

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51 ANNETT ANNETT G ’ Ryan Dean, a ,

47 According to Boyce, [97:1 [97:1

48 note 36. 36. note

45 Arguing that the judge judge the that Arguing 50 supra His high school classmate and and classmate school high His 41 note 36. note 36. note 36. According to defendant Jonathan Boyce, Champion sought to be the leader of the the of leader the be to sought Champion NewsBank, Rec. No. 45904888. 45904888. Rec. No. NewsBank,

43 46 supra supra supra Florida: Florida: University Holds Drum Major Responsible for His , , Sept. 12, 2012, at A21. A21. at 2012, 12, , Sept. Hazing Hazing Victim: ‘I Was Made an Example of MARQUETTE LAW REVIEW LAW MARQUETTE RESS available at IMES P note 36; Hightower & Schneider, ) 11/25/2013 T

According to defendant Caleb Jackson, “[i]f you go to ELETE supra

, N.Y. D 44 OT OT N

SSOCIATED O 49 , Dec. 14, 2011, 2011, , 14, Dec. Ariosto, Hightower & Hightower Schneider, & (D

. . Id. . Id. . Id. . Id. . Id. . However, interviews with defendants and other band members re- members band other and defendants with interviews However, 10 42 44 43. Hightower Schneider, & While Robert Champion’s in the context of collegiate hazing death is 51 41. Hightower Schneider, & 42. Blayne Alexander, 46 47 48 49 50. A 45 Although band members sign a pledge vowing not to participate in Ultimately, when Champion’s parents brought a lawsuit against ERVICE ARKS should dismiss the lawsuit, the university argued that “[n]o public versity uni- or college has a legal duty to protect an adult student result from of the their own decision to participate in a dangerous activity while university-sponsored events.” off-campus and after retiring from leased in late May suggested through that the hazing Champion rituals. had volunteered to go hazing, Champion and two other band members went through the ritual on the night of his death. Champion said he intended to go through with it. S 6 nent of hazing within the Marching 100. P the school, who bore the ultimate responsibility for his hazing death because he consented to the hazing activities. FAMU, the university, in its defense, insisted that it was Champion, not that bus that’s saying that you wanted to do it.” saying that you wanted to that bus that’s mentee, Bria Hunter, said Champion told her not to her. let anyone touch drummer who regularly rode Bus C, said that Champion told him earlier in the week he would “see [them] on the bus.” “Champion was in the back[] getting kicked and punched” by the time he arrived, and Boyce and co-defendant Shawn Turner tried Champion to from shield the blows and get him quickly. to the back to end the ritual Marching 100, leading others who had already “Cross[ed] Bus C,” and some band members felt that meant Champion had to go through with the beating. Death in Hazing 34306-mqt_97-1 Sheet No. 7 Side B 01/13/2014 11:22:05 01/13/2014 B Side 7 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 8 Side A 01/13/2014 11:22:05

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volenti non fit injuria

7 7 ONSENT C Others explicitly bar the defense or or defense the bar explicitly Others 56 However, these cases provide little in in little provide cases these However, AW OF AW Civil law permits consent as a defense, defense, a as consent permits law Civil 53 54 L HE T HAZING CONSENT HAZING

II. ) 11/25/2013 ELETE notes 133–35 and accompanying text. text. accompanying and 133–35 notes text. accompanying and 188–91 177–78, notes II.A. Part II.B. Part text. accompanying and 139–41 notes text. accompanying and 136–38 notes Hazing statutes often bar use of the victims’ consent as a a as consent victims’ the of use bar often statutes Hazing D 55 A. Consent in Criminal Law: A General Approach OT OT N

O 57 (D

. See infra . See infra . See infra . See infra . See infra . See infra 10 This Part presents a brief summary of ways consent is viewed and Consent in criminal law has undergone a shift in its approach to 52 53 54 55 56 57 M K ARKS C Y deemed appropriate by courts. addressed in criminal, civil, and hazing statutes. Criminal law largely rejects consent as a defense in most cases, except in those areas of activity rights and interests of the victim. common law reflected the Roman law principle “‘ Prior to the seventeenth century, defense by making it irrelevant. particularly where the victims assumed the risk of the activity in which they were harmed, or the injury was arisk of participating in foreseeable the activity. in this Article, we investigate a range of psychological theories that may explain why hazing victims persist in their hazing experiences. In Part II, we explore how victims’ consent is addressed in hazing case law and statutes. In Part III, we criminal, highlight psycholog- several tort, and ical theories which courts should consider when determining the extent to which, if at all, a hazing come. victim’s psychological will has been over- the way of engagement with psychological theory or research. As such, apply a presumption against consent or forced. that hazing activity is per se

2013] 2013] band initiation rites, it provides a recent example of the broader context within which takes collegiate place—fraternities hazing and often sorori- ties. Accordingly, in this Article, we explore whether fraternity and sorority pledges can consent to hazing. There has been some divergence on the topic in the law. Most state hazing statutes have remained silent on the issue, and only a few courts have squarely addressed the issue. P Among the latter, courts presume that the psychological will of the hazing victim has been overborne. 34306-mqt_97-1 Sheet No. 8 Side A 01/13/2014 11:22:05 01/13/2014 A Side 8 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 8 Side B 01/13/2014 11:22:05

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see ODE C Y 3:41 C § 2.11

172); 172);

at ODE A Different

. 1137, 1145 ENAL C 619, 620–21 620–21 619, P Morality-Based Even with with Even ULL 68 B

ENAL note 58, ODEL L. P

and sadomaso- and (2007)). (2007)). The The Right to Be Hurt: .

M 65 supra supra RIM RIMINOLOGY ODEL [97:1 [97:1 C This shift resulted in in resulted shift This 171–72

M 61 & see see also

, 45 C . 683, 686 (2008). (2008). 686 . 683, 165,

L. .

. EV EV R

R RIM

. 35, 55 (2007); Ben Livings, L. C L.

. The Manly Sports: The Problematic Use of see see generally ACE ASH , 99 J. W OMMENT

. , 28 P , 28 C 63

making consent a complete bar to pros- to bar complete a consent making EO 58 . 1615, 1625 (2007)); J.L. EV S ’ Lex Sportiva: Thoughts Towards a Criminal Law of Com- sexual assault and rape, and assault sexual R

, 75 G , 75 Sex Is Not a Sport: Consent and Violence in Criminal Law From From the Legal Literature 64 Some Common Confusions About Consent in Rape Cases note 58, at 1145. 1145. at 58, note L. However, the Model Penal Code (MPC) and and (MPC) Code Penal Model the However,

OHN . 67 J note 58, at 1145; 1145; at 58, note

note 58, at 1145 (quoting Bergelson, Bergelson, (quoting 1145 at 58, note . note 58, at 1139 (quoting Kelly Egan, Comment, Comment, Egan, Kelly (quoting 1139 at 58, note LB MARQUETTE LAW REVIEW LAW MARQUETTE T supra Consent to Harm to Consent note 59, at 686. 686. at 59, note supra supra ) 11/25/2013 supra “[A]cts that had been considered violations of a par- a of violations considered been had that “[A]cts , 22 S note 59, at 686. 686. at 59, note 60 , 70 A supra L. 333, 333 (2004). (2004). L. 333 333,

ELETE . , Cheryl Hanna, , Peter Westen, , Christo Lassiter, D supra . 239, 239 (2001). (2001). 239, 239 . RIM OT OT L. 534, 534 (2007); Jeffrey Standen, EV N C During the 1600s, criminal systems shifted from interests in in interests from shifted systems criminal 1600s, the During

; Fischer et al., et al., Fischer ;

. O R 59

J. Today, criminal law commonly rejects consent as a defense to to defense a as consent rejects commonly law criminal Today,

. Id. (D 66 L.

T As such, “an individual lost the power to consent to what the the what to consent to power the lost individual “an such, As

RIM . See, e.g. . Id. . See, e.g. . See, e.g. S 10 62 C

65 60. 61. Fischer et al., 62. Bergelson, 63 64 67. Fischer et al., 59. Vera Bergelson, 58. Ryan G. Fischer et al., 68. Fischer et al., Much of the literature on consent in criminal law centers on cases 66 Bergelson, Bergelson, HIO ARKS ticular victim’s interests came to be viewed . . a as . ‘disturbance of the society,’” a view still echoed in today’s case law. O (2009). involving contact sports, petitive Contact Sport also other case law make exceptions “for assaults resulting in little or no injury, sports, medical treatment, and body modification.” these exceptions, criminal law favors a public policy where “a person 8 (‘to a willing person, no injury is done’)” consent that to harm-causing acts,” allowed “individuals to P ecution. (1985). Legislation Is Alive and Well: Why the Law Permits Consent Sadomasochistic to Sex Body Modification but Not Ball Game—Why the Nature of Consent in Contact Sports Undermines a Unitary 71 Approach J. chism. state regarded as harm to itself.” as harm state regarded most criminal assaults. cess. the state becoming the “ultimate victim and the sole prosecutor of [the] criminal act” and the removal of the actual victim from the criminal pro- § 2.11(2). (1305) (Eng.) (“to a willing man no injury is done”); Vera Bergelson, Consent of Testing Boundaries the (2009) (quoting Randolf v. de Richmond, Y.B. 33 Edw., fol. RS 7-11, Mich., pl. 6, at 6–9 42 B.C. 42 Criminal Law to Regulate Sports Violence the victims and their rights to a centralized judicial structure focused on the public good. 34306-mqt_97-1 Sheet No. 8 Side B 01/13/2014 11:22:05 01/13/2014 B Side 8 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 9 Side A 01/13/2014 11:22:05

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UBSTANTIVE , S AVE F A L

constitute a breach breach a constitute R. and There, the court found found court the There, 71 AYNE 9 9 W see also However, where a criminal assault “is “is assault criminal a where However, 72 similarly noted that the law punishes for HAZING CONSENT HAZING

§ 2.11(1) (1985); (1985); 2.11(1) § 75 note 58, at 1138 (quoting People v. Jovanovic, 700 N.Y.S.2d 156, 156, N.Y.S.2d 700 Jovanovic, v. People (quoting 1138 at 58, note note 58, at 1138, 1145–46. 1145–46. 1138, at 58, note , the court divided criminal assault into two classes: ODE note 59, at 687 & n.29 (“Thirteen states explicitly recognize a gen- a recognize explicitly states (“Thirteen n.29 & 687 at 59, note C Likewise, a New Mexico court favored the public’s public’s the favored court Mexico New a Likewise, ) 11/25/2013 supra supra 74

Wright v. Starr “The consent of the victim to conduct charged to con- to charged conduct to victim the of consent “The 70 supra 76 ENAL ELETE P § 6.5 (2d ed. 2003). 2003). ed. (2d 6.5 § D Courts have often found that consent is not a valid defense defense valid a not is consent that found often have Courts 69 OT OT AW N

L ODEL

O 73 Taylor v. State (D

. Id. . Id. 10 71.1957). (Md. 415 414, 133 A.2d Taylor v. State, 72 73 74. 1919). 878 Wright (Nev. P. v. 179 877, Starr, 75. 1973). App. Ct. (N.M. 107 106, P.2d 510 State v. Fransua, 76. Bergelson, 77. M 70. Fischer et al., The court in 69. Fischer et al., In The MPC’s view on consent serves as the basis for the law in the ma- M K RIMINAL ARKS C Y one that breaches the public peace generally and another that “is not accompanied by the threat of serious hurt or breach of the public peace,” and “is treated as a crime against the person.” that there is no defense of consent when the criminal assault “tends to bring about a breach of the the public because peace” crime is treated as crime against the public. general when criminal assaults are injurious to a person of public peace. jority of states. not accompanied by the threat of serious hurt or . the peace . . breach consent of of the the public person assaulted is held to fense, be since a good the de- absence of consent is fense.” an essential element of the of- eral defense of consent in their statutes.”). eral their of in defense statutes.”). consent 168 n.5 (App. Div. 1999)). 1999)). Div. (App. 168 n.5 C

2013] 2013] cannot avoid criminal responsibility for an assault that causes injury or carries a risk of serious harm, even if the victim asked for or consented to the act.” P acts over victims of crimes who “have so little regard for their own safe- injury.” ty as to request “stronger and overriding interest in preventing and prohibiting” violent stitute an offense or to the result thereof negatives is an a element defense of if such the consent offense or harm precludes or evil the sought to infliction be prevented of by the the law defining the offense.” For offenses that involve bodily harm, consent is not a defense even if it criminal assault “even if consent is . . because given . consent to a tery bat- is illegal as against the state, peace on involved.” account of the breach of public 34306-mqt_97-1 Sheet No. 9 Side A 01/13/2014 11:22:05 01/13/2014 A Side 9 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 9 Side B 01/13/2014 11:22:05 M K PM

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Assent Assent 79 OMPARATIVE C

84 80 § 3 (providing justifi- RONGS id.

[97:1 [97:1 ’ ICTIMS V See generally Bodily injury is “serious” ac- “serious” is injury Bodily 81 Instead, consent is a defense to to defense a is consent Instead, 78 IGHTS IGHTS AND R

’ ICTIMS §§ 2.11(2), §§ 2.11(2), 3.08(4)(a). § 210.0(3). 210.0(3). § n.8. cmt. 2.11 § 20 (2009). 20 , V note 58, at 1147. 1147. at 58, note MARQUETTE LAW REVIEW LAW MARQUETTE Courts seem more lenient in cases of religious religious of cases in lenient more seem Courts ODE note 64, at 534. 534. at 64, note AW ODE ODE note note 59, at 687 (“This general rule, however, does not apply to of- 83 C L C C ) 11/25/2013 supra supra supra supra ENAL ENAL ENAL ERGELSON ELETE P P P D B RIMINAL C OT OT Courts also suggest “that there is a variance in the way that that way the in variance a is there “that suggest also Courts Livings, Livings, N § 2.11(3). 2.11(3). § Bergelson posits that “courts habitually exaggerate the seri- the exaggerate habitually “courts that posits Bergelson ODEL ODEL ODEL 85 ERA O 82 (D

. Id. . See 10 Consent as a defense is viewed by some legal scholars as more per- 82. M 84. Fischer et al., 85. M 79. M 78. Bergelson, 83. V Commentary to MPC acknowledges that assessment of seriousness is Commentary to MPC acknowledges 80 81 IABILITY IN IN IABILITY ARKS missible in certain contexts than in others, often based on the definition and interpretation of a “serious” injury. protracted loss or impairment of the function of any bodily member or organ.” cording to the MPC and similarly worded statutes if stantial it risk “creates of death a or . . . causes sub- serious, permanent disfigurement, or impacted by “moral judgments about the volved.” iniquity of the conduct in- L

10 10 negatives an element of the offense. P of treatment” to improve a patient’s mental or physical health. conduct that “causes or threatens bodily injury,” such injury” or under the “the MPC in infliction specific instances: of (1) when “the bodily injury consented to or threatened by the conduct consented to is not serious;” (2) “the conduct and the injury are reasonably foreseeable haz- ards of joint participation in a sport or other lawful concerted activity not forbidden athletic by law;” (3) contest the consent or competitive establishes a justification such protection; and (4) when bodily harm is inflicted for “a recognized as form protection of property and self- fenses involving bodily harm.”). fenses bodily involving harm.”). flagellation and serious injuries resulting from contact sports because of with such activities. the perceived social utility associated does not constitute consent if: (1) the assenter is “legally incompetent to authorize the conduct charged to constitute the offense;” (2) the assenter is “unable to make a reasonable judgment as to the nature or harm- fulness of the conduct;” (3) “it is induced by force, duress or deception of [the] kind” the law is trying to prevent; or (4) “it is given by a person is trying to prevent. law whose improvident consent” the ousness of injury or pain and the risk of death in order to condemn unwanted an activity.” cations for conduct that would otherwise be a criminal offense). offense). criminal a be otherwise would that cations for conduct 34306-mqt_97-1 Sheet No. 9 Side B 01/13/2014 11:22:05 01/13/2014 B Side 9 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 10 Side A 01/13/2014 11:22:05 PM

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§ 13(a) 13(a) § ORTS T OF OF ) IRST (F

11 11 88 In essence, if a harmful act act harmful a if essence, In 86 ESTATEMENT ESTATEMENT note 89, at 1646–49. 1646–49. at 89, note supra § 892A (1979). (1979). 892A § ORTS T The evolution of the defense of consent in in consent of defense the of evolution The OF OF 92 ) While additional issues of informed consent consent informed of issues additional While HAZING CONSENT HAZING 93 ECOND Intent and Consent in the Tort of Battery: Confusion and Controver- note 59, at 691. 691. at 59, note (S However, it was unclear from the First Restatement Restatement First the from unclear was it However, ) 11/25/2013 note 64, at 541. 541. at 64, note note 89, at 1605, 1612. 1612. 1605, at 89, note 89 . 1585, 1605 (2012) (quoting R supra EV ELETE R supra B. Consent in Civil Law: A General Approach supra

D § 892A cmt. c, illus. 2; Moore, 2; c, illus. Moore, cmt. 892A §

OT OT at 1605 n.112. & 1605 at N

ESTATEMENT 91 O . The Second Restatement worked to resolve this ambiguity by by ambiguity this resolve to worked Restatement Second The M (D

90 . See id. . Id. . id. See Thus, determining seriousness of an injury, as well as the court’s court’s the as well as injury, an of seriousness determining Thus, 10 87 87. Bergelson, 88 89. Nancy J. Moore, 86. Livings, The First Restatement of Torts defines the tort of battery as an act The issue of consent is especially common in battery torts arising The Second Restatement clearly establishes that one who consents 90. Moore, 91 92. R 93 M K , 61 A ARKS C Y with intent to bring about “a harmful or offensive contact,” without consent or privilege. battery torts has altered the role of consent as a successful defense, but ambiguities still exist in the policy and contractual nature consent, which case law better illuminates. of provided from medical treatment. it”; furthermore, any consent only applies to the conduct it is specifically related to, and any conduct beyond that covered by the consent can be the basis for tort recovery. to an act “cannot recover . . . for the conduct or for harm resulting from is not athletic or medical, it may be criminal unless the injury is not serious. whether lack of consent was an element of a prima facie case for battery, of a prima whether lack of consent was an element and the corollary, whether consent was an claim. affirmative defense to the

2013] 2013] [offenses] are viewed within and [outside] the context of sport,” possibly resulting in “a higher threshold that must be reached before liability is imposed for [behavior] on the sports field.” P sy stating that when the defendant has a reasonable belief that the plaintiff has consented to the act, the therefore defendant entitled to a has complete affirmative apparent defense and consent is absolved and of is liability. and intent arise in these circumstances, the basic principles of consent perception of the social utility of the activity in question, influences the outcomes of consensual harm. cases involving (1934)). 34306-mqt_97-1 Sheet No. 10 Side A 01/13/2014 11:22:05 01/13/2014 A Side 10 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 10 Side B 01/13/2014 11:22:05

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The The 96 The student student The 103 Bradford Bradford v. Winter . 1, 8–9 (1997). (1997). 1, 8–9 . [97:1 [97:1 EV The broad consent giv- consent broad The R 97

, a karate student granted The Sports Chamber: Exculpatory L. Agreements may cover injuries injuries cover may Agreements PORTS 99 S Often these agreements, termed termed agreements, these Often

The court determined that the re- the that determined court The 100 &

. 104 NT E Levine v. Gross IAMI M

In In 102 , 14 U. , 14 MARQUETTE LAW REVIEW LAW MARQUETTE note 64, at 547. 547. at 64, note , a patient signed a form giving express consent to a However, they often do not speak of a duty owed owed duty a of speak not do often they However, 101 ) 11/25/2013 supra ELETE at 8. 8. at D Bradford OT OT at 2, 8. 8. 2, at 263–64. at 264. at Livings, N at 244, 246. 246. 244, at 245. at 246. at

O 98 In In doc- the that learning after battery for suit brought patient The (D The court noted that the contract must be “clear, unequivocal, unequivocal, “clear, be must contract the that noted court The . Id. . See id. . Id. . Id.

94 95 . Id. . See . Id. . Id. . Id. 10 105 100. Mario R. Arango & William R. Trueba, Jr., 98 99 94. 1963). App. Dist. Ct. (Cal. 246 243, Cal. Rptr. 30 v. Winter, Bradford 95 96 97 101 102 103. App. 1997). Ct. (Ohio 263 262, N.E.2d 704 Levine Gross, v. 104 105 In sports, participation is often conditioned on the player giving con- ARKS Agreements Under Pressure by the patient, and the appeals court affirmed. district court found that this was a bronchoscopy and normal was within procedure the incident bounds of to the express the consent given and unambiguous,” and that it must cover all incurred injuries that are sent and waiving any claims for injury. “releases,” are meant to eliminate any duty an organizer of an event has to the participant. arising under normal circumstances in the sport or a whole host of antic- ipated or unanticipated occurrences. en by the patient applied to a whole host of tions by possible the doctor and discretionary was therefore a ac- complete bar to recovery by the patient.

12 12 are still applicable in medical battery. The court in analyzed consent broadly, noting that consent plied. can be express or im- P that covered “all liability in said course of instruction.” consent to release the karate studio from “some risk of personal injury” lease was broad enough to cover those injuries tion. and dismissed the ac- by fellow participants. asserted that “some risk” did not cover the detached retinas he suffered that required surgery on both eyes. doctor to complete a bronchoscopy, and additionally, to allow the doctor to perform “any other tate.” procedure that his . . . judgment may tor dic- removed a specimen for biopsy during the bronchoscopy. 34306-mqt_97-1 Sheet No. 10 Side B 01/13/2014 11:22:05 01/13/2014 B Side 10 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 11 Side A 01/13/2014 11:22:05

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110 The plain- The 107 However, while 114 13 13 HAZING CONSENT HAZING The court made note of two important factors factors important two of note made court The This additional intent requirement could filter filter could requirement intent additional This 106 Instead of searching for express consent, they they consent, express for searching of Instead 112 113 , 704 N.E.2d at 264. 264. at N.E.2d , 704 note 89, at 1637. 1637. at 89, note ) 11/25/2013 Levine , Benitez v. New York City Bd. of Educ., 541 N.E.2d 29, 32 (N.Y. 1989) supra , ELETE , 704 N.E.2d at 264. at 264. N.E.2d , 704 In this case, the dangers inherent in karate were apparent- were karate in inherent dangers the case, this In at 1632–37. 1632–37. at D 109 OT OT 1990)). (Ohio 709 705, N.E.2d 559 McNeill, v. Thompson (quoting Others have argued that there must be a dual-intent element element dual-intent a be must there that argued have Others N O 111 (D . See, e.g. . Levine . See id. . See, e.g. . Id. . Id. . Id. . Id.

10 The question naturally arises whether an act committed, which the 114 110 111. Moore, 112 113 106 107 108 109 Many courts have sidestepped this issue and focused on the consent M K ARKS C Y injured party did not expressly consent to, can be the basis for a battery tort claim. In such circumstances, the impact claim is of of intent utmost importance. in Some the scholars battery have advocated for battery to require a single intent: the intent to cause unwanted or offensive contact. ly so high as to warrant a limited duty of care by the participants. of care by the limited duty to warrant a ly so high as in its decision: first, that the participant was aware of the potential risks that could result from participating in karate because he had previously suffered, among other injuries, dislocated fingers, a knee injury that required surgery, and corneal abrasion; and second, that reckless miscon- duct by a fellow participant may be a basis for a tort action. (discussing assumption of risk); Turcotte v. Fell, 502 N.E.2d 964, 968–70 (N.Y. 1986) (discussing implied consent); Arbegast v. Bd. of Educ., 480 N.E.2d 365, 371 (N.Y. 1985) implied assumption of (discussingrisk); Vendrell v. Sch. Dist. No. 26C, 376 P.2d 406, 414 (Or. 1962) (dis- risk). of cussing assumption

2013] 2013] claimed in the tort suit. P not intended to produce such a result. In these circumstances, were an injury to occur outside of the normal playing time in a sport without in- no action could lie. tent to actually cause harm, of the injured party. out cases where there was no consent, but the act that caused injury was find actual or implied consent, or assumption of risk. to battery: (1) the intent to cause the unwanted touch, and (2) the intent to cause harm or pain. of the sport falls,” when examining the each other. duty owed by participants to tiff’s general knowledge of the potential for had injury eliminated any ambiguity in inherent the assumption of in risk in the karate release. The court noted that “the standard of care rises as the inherent danger these two doctrines are separate and distinct in tort jurisprudence, 34306-mqt_97-1 Sheet No. 11 Side A 01/13/2014 11:22:05 01/13/2014 A Side 11 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 11 Side B 01/13/2014 11:22:05 M K PM

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The The 122 On the the On 125 Arbegast However, However, 123 Second, the the Second, 118 First, the act was was act the First, 117 [97:1 [97:1 ., a child taking swim- The court found that that found court The 116 analyzed a sports-injury bat- sports-injury a analyzed , 502 N.E.2d at 968–70; Turcotte The court recognized that the rules of the the of rules the that recognized court The 121 MARQUETTE LAW REVIEW LAW MARQUETTE , 541 N.E.2d at 32; Thompson v. Park River Corp 376 P.2d at 414. 414. at P.2d 376 ) 11/25/2013 In In Benitez The court reasoned that it is up to the umpires to en- to umpires the to up is it that reasoned court The , 115 ELETE 124 D There, a baseball pitcher threw an inside pitch and hit the the hit and pitch inside an threw pitcher baseball a There,

, 131 P.3d at 394. at 394. P.3d , 131 Vendrell, 120 119 OT OT at 1265–66. 1265–66. at 1265. at 394. at 1992)). (Cal. 710 696, P.2d 834 Jewett, v. Knight (quoting

N O (D . See, e.g. . Id. . Id. . Id. . Id. . Id. . Id. .Avila . Id.

10 The final circumstance that must be examined is in activities with 115 117 118 119 120. 2006). (Cal. 385–86 383, P.3d 131 Coll. Cmty. Dist., Avila Citrus v. 121 122 123 124 116. 2005). App. Ct. (Ohio 1255 1252, N.E.2d 830 Corp., River Park v. Thompson 125 ARKS rules that are intentionally broken in order to cause harm. The court in Avila v. Citrus Community College District tery claim. issue of consent, the court equated the injury arising from the intentional striking of the batter with a pitch to a boxer accepting the risk of his force the rules of the sport, and any judicial remedy for acts within the sport would have a chilling effect on the conduct of the game. not done recklessly or intentionally and was therefore lacking the requi- site intent to injure for the battery claim to be sustained. swimming lessons often involve an inherent amount of “rambunctious behavior.” injured child had assumed the risk of being injured because children’s

14 14 courts often ambiguously use both terms and hold the injurer not liable for the injury. P N.E.2d at 371; at 371; N.E.2d the court held that even if the pitch was intentional, the act did not fall completely outside of the purview of normal activity in the sport to warrant liability. game, which all participants had consented to, as risks well as in the baseball, inherent include the risk of being intentionally struck. even though the offending child had acted outside swimming lessons, he of was not liable for two reasons. the rules of the are not covered by assumption of risk or implied consent. court cited precedent in acknowledging that intentional or reckless acts “totally outside the range of the ordinary activity involved in the sport” batter in the head, apparently in retaliation for his team’s batter being struck in a previous inning. ming lessons was injured when he was pushed into the swimming by pool another child who was also taking lessons. 34306-mqt_97-1 Sheet No. 11 Side B 01/13/2014 11:22:05 01/13/2014 B Side 11 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 12 Side A 01/13/2014 11:22:05

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Va- IGH IGH H 3:41

or as as or ITES AND ITES ADINE ADINE 130 . 305, 310– R EV R

MERICAN L. A NITIATION NITIATION I

: State Anti-Hazing Laws ITES ITES IN R UINNIPIAC http://www.alfred.edu/sports_ Q URVEY

S 15 15 , 26 , 30 A.L.R.5th 683, 683 (1995)). (1995)). 683 A.L.R.5th , 683, 30 Nevertheless, in 1901, Illi- 1901, in Nevertheless, http://www.alfred.edu/hs_hazing/docs/ 131 NITIATION I

available at However, the term has been been has term the However, ., ATIONAL ATIONAL Unfortunately, state legislatures legislatures state Unfortunately, 129 N

NIV 128 ., U (1991)). (1991)). available at available

NIV U 24 (1999), (1999), 24 These hazing activities have since made made since have activities hazing These As of today, all but six states have fol- have states six but all today, of As LFRED 127 132 118–19

, A EAMS Protecting Protecting Students from the Wrongs of Hazing Rites: A LFRED 4 (2000), The The Criminalization of Fraternity, Non-Fraternity and Non- HAZING CONSENT HAZING T A

, C. Consent in Hazing Law note 127, at 309 (omission in original) (quoting N (quoting original) in (omission 309 at 127, note L.J. 111, L.J. note 127, at 313. States without anti-hazing statutes are Alaska, Alaska, are statutes anti-hazing without States 313. at 127, note note 127, at 308–09 (quoting Frank J. Wozniak, Annotation, Annotation, Wozniak, J. Frank (quoting 308–09 at 127, note note 127, at 311–12 (alteration in original) (quoting 1901 Ill. Laws Laws Ill. 1901 (quoting original) in (alteration 311–12 at 127, note

. OLLARD URVEY PORTS P S

ISS OOVER

) 11/25/2013 J. supra supra supra supra H

126 http://stophazing.org/laws.html (last visited Sept. http://stophazing.org/laws.html 2013). 24,

, C. ELETE , 61 M 61 , NCAA S NCAA D ATIONAL ORG ORMAN . OT OT at 395. 395. at at 311–16 (noting that hazing has become more common in high schools, par- schools, high in common more become has hazing that (noting 311–16 at N FOR N

ADINE Despite this move by states’ legislatures, scholars have found found have scholars legislatures, states’ by move this Despite O & : A N : A 133 (D . Id. . Id.

AZING 10 H 132. Acquaviva, 133. Acquaviva, 130. Acquaviva, 131. Acquaviva, 126 127. Gregory L. Acquaviva, 129. N 128 The act of “hazing” can be traced as far back as ancient Greece, M K THLETICS OOVER CHOOLS TOP ARKS C Y hazing__study.pdf). hazing__study.pdf). 145; Darryll M. Halcomb Lewis, Collegiate Hazing “any humiliating or dangerous activity . . to expected . join a group, regardless . . willingness of . to participate.” different things to different people.” have struggled to define criminal hazing because “[h]azing means many their way into the United States and have become prevalent in military barracks, colleges, and high schools. lidity, Construction, and Statutes Application “Hazing” of hazing/docs/hazing.pdf. hazing/docs/hazing.pdf. where soldiers were forced to endure pain and punishment as a sign of their loyalty to the military. H S A 2013] 2013] jabs. opponent’s P Proposal for Strengthening New Jersey’s Anti-Hazing Act nois became the first state to pass an anti-hazing law when it enacted a statute criminalizing conduct “whereby any one sustains an injury to his [or her] person therefrom.” lowed suit and enacted criminal or civil statutes that prohibit and punish hazing. ticularly student-athletes). among 11 (2008). 11 (2008). broadly defined as “the act of putting another in a ridiculous, humiliating, or disconcerting position as part of an initiation process,” that there are several that obstacles impede the effectiveness of state anti-hazing statutes, and, in turn, these obstacles have spurred changes in Montana, Montana, South Dakota, Hawaii, New S Mexico, and Wyoming. 34306-mqt_97-1 Sheet No. 12 Side A 01/13/2014 11:22:05 01/13/2014 A Side 12 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 12 Side B 01/13/2014 11:22:05

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regard- Georgia’s Georgia’s 139 .” 377, 387 (2002). (2002). 387 377, . § 76-5-107.5(2) (Lex- Some states take take states Some NN 135 A [97:1 [97:1 ODE tit. 14, § 9302 (2007). (2007). 14, tit. § 9302

. C Utah’s anti-hazing statute statute anti-hazing Utah’s ONFINEMENT NN 137 C

A . TAH IV C

ODE 134 & C

. . § 5352 § 5352 (West 1992)). Similarly, Delaware’s an-

. EL RIM NN D C

. ON J. Oklahoma’s anti-hazing statute states that that states statute anti-hazing Oklahoma’s

TAT Regulation of Regulation Rites: and The Enforcement Effect of Current . S 136

. NG A E . § 708.10 (West 2003) (emphasis added). added). (emphasis 2003) . 708.10 § (West MARQUETTE LAW REVIEW LAW MARQUETTE EW . § 16-5-61 (2011). § (2011). . 16-5-61 note 134, at 386 (citing U (citing 386 at 134, note NN tit. 21, § 1190 (2002). (2002). 1190 tit. § 21,

NN A ) 11/25/2013 . A , 28 N , 28 . § 948.51 (2011–2012). (2011–2012). 948.51 . § supra

TAT ODE , Amie Pelletier, ELETE S

141 C TAT . ODE D S

C .

OT OT . at 386 (citing 24 P 24 (citing 386 at at 386 & n.75. n.75. & 386 at IS N KLA A OWA O Id. (D . Id. . See, e.g.

Wisconsin’s anti-hazing statute similarly states that “forced activi- “forced that states similarly statute anti-hazing Wisconsin’s 10 140 Perhaps an even stronger mechanism employed by a number of Several states include in their anti-hazing statute a provision that 139. I 135 136. To remove the need for subjective inquiry into the facts of hazing 137. O 134 141. W 138. Pelletier, 140. G ARKS states is an explicit prohibition against hazing cases. the Nevada’s anti-hazing statute provides that victim-consent “[c]onsent of a defense in makes the victim’s consent irrelevant. For example, Iowa’s anti-hazing statute defines “forced activity” as “any activity which is a condition of initiation or admission into, or affiliation with, an organization, less of a student’s willingness to participate in the activity cases, the legislatures of sixteen states have hazing statutes added that bar provisions the victim-consent in defense. anti- activity notwithstanding.” the approach of applying a presumption against consent or a presumption that hazing activity is per se forced activity. For example, Pennsyl- vania law applies a presumption against consent by providing that any activity that fits within the statutory definition of hazing is “presumed to be ‘forced’ activity, the willingness of an individual to participate in such also has a similar prohibition against the victim-consent defense by as- suming that victims under the age of twenty-one are more vulnerable to by such any persons. consent to peer hazing pressure, thus prohibiting ti-hazing statute mimics the same language, stating that any activity within the statutory definition of “hazing” is “presumed to be ‘forced’ activity, the willingness of an individual to participate in activity such notwithstanding.” isNexis 1999)). Anti-Hazing Statutes

16 16 such barriers. overcome to legislation P hibited “regardless of such a student’s activi- willingness to participate in ty.” anti-hazing statute also contains a provision that forced activity is pro- ty” is prohibited “regardless of a student’s willingness to participate in the activity.” any hazing activity is “presumed to be a forced activity, even if the student willingly participates in such activity.” 34306-mqt_97-1 Sheet No. 12 Side B 01/13/2014 11:22:05 01/13/2014 B Side 12 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 13 Side A 01/13/2014 11:22:05

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When When 149 § 200.605(2)

. NN ), Jason Jones A

. Vermont’s anti- Vermont’s TAT S

143 . EV R

. of the other person.” 17 17 EV Barran), 730 So. 2d 203, 204 (Ala. (Ala. 204 203, 2d So. 730 Barran), Ex parte Barran ( Ex parte § 3-607 (LexisNexis 2012). 2012). (LexisNexis 3-607 § AW Missouri has a similar provision, which which provision, similar a has Missouri

142 . HAZING CONSENT HAZING 147 RIM . § 18-16-2 (LexisNexis 2012). 2012). . (LexisNexis 18-16-2 § C

. § 35-42-2-2 (LexisNexis 2009) (emphasis added). added). (emphasis 2009) (LexisNexis § 35-42-2-2 . NN ., . § 578.365 (West 2011). (West § . 578.365 . tit. 16, § 140b (2004). . (2004). tit. § 16, 140b note 134, at 386–87 (quoting N (quoting 386–87 at 134, note A NN NN ) 11/25/2013 with or without the consent NN TAT A A S A Jones claimed he was subjected to numerous hazing in- hazing numerous to subjected was he claimed Jones

supra . . ODE 148 ELETE C

NN . ODE ODE D TAT A C A C

S . Maryland’s anti-hazing provision also explicitly states that that states explicitly also provision anti-hazing Maryland’s . .

OT OT V at 204–05. 204–05. at . 2001)). 2001)).

O D N T 144

ND O 145 Jones v. Kappa Alpha Order, Inc. (D . Id.

10 Indiana provides the most explicit bar against the victim-consent de- 148. Jones v. Kappa Alpha Order, Inc. ( 149 146. I 145. M 147. W. 142. Pelletier, 144. V In By including these various provisions in their anti-hazing statutes, 143. M M K ARKS C Y fense by stating that hazing involves the act of “forcing or requiring another person . . . have their psychological will overpowered and were thus able to consent experienced. they to the hazing these sixteen states have removed the subjective inquiry of consent from consideration, thus presumably properly adjudicate hazing cases. allowing Courts, however, have addressed the courts issue to of consent in a limited number of effectively instances. For example, a mere and handful of courts have found that fraternity pledges did not necessarily states that “[c]onsent is not a defense to hazing.” Jones was suspended from school for poor academic performance, he 1998). (LexisNexis

2013] 2013] victim of hazing is not a valid to defense a prosecution conducted [under the anti-hazing statute].” P West Virginia’s statute also provides a consent strong defense bar in any against manner, the stating that victim- “the implied or consent or willingness of a person or expressed persons to hazing shall not be a de- this section.” fense under hazing statute states that “[i]t is not a . that defense . . the person against whom the hazing was directed consented to or acquiesced in the hazing activity.” cidents, such as jumping into ditches filled with water, urine, and feces; withstanding physical abuse; and appearing house for two a.m. nightly meetings to be at hazed in a the variety of ways. fraternity “[t]he implied or express consent of a fense.” student to hazing is not a de- was an Auburn University student who chose to pledge the fraternity of Kappa Alpha. 34306-mqt_97-1 Sheet No. 13 Side A 01/13/2014 11:22:05 01/13/2014 A Side 13 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 13 Side B 01/13/2014 11:22:05

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152 The friendly horse- friendly The The supreme court court supreme The [97:1 [97:1 157 153 , freshman Brian Yost suf- The court did not find persuasive persuasive find not did court The As such, the defendants breached breached defendants the such, As

154 160 161

158 However, the court determined that since the the since that determined court the However, The fraternity asserted the defense of assump- of defense the asserted fraternity The 159 150 Yost v. Wabash College MARQUETTE LAW REVIEW LAW MARQUETTE are outliers, however, when compared to cases from from cases to compared when however, outliers, are ) 11/25/2013 Yost ELETE D OT OT at 205. 205. at 205–06. at at 208. 208. at 206–07. at 207. at 735. at 745. at

N and and O (D . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id.

10 Yost, a Phi Psi pledge, decided to throw an upperclassman into a a into upperclassman an throw to decided pledge, Psi Phi a Yost, More recently, in The Supreme Court of Alabama sided with the fraternity and re- Jones 153 154 155 156. Ct. 2012). (Ind. App. 728 724, Coll., N.E.2d Yost Wabash 976 v. 157 158 159 160 161 150 151 152 Yost filed a personal injury action against the fraternity, the college, 156 ARKS manded the case with instruction for the trial court to grant its for motion summary judgment on the negligence claim. creek to celebrate the upperclassman’s birthday. other states. For example, the issue of consent was addressed by a New Jones’s argument that “a coercive environment hampered his free will to hampered his free environment Jones’s argument that “a coercive leave the fraternity.” choose to not voluntarily he could the extent that no duty to Yost as a matter of law. play escalated until an upperclassman put Yost in a chokehold, at which time Yost lost consciousness. and the upperclassman.

18 18 brought suit against the fraternity for negligence, and the of tort outrage. assault and battery, P incident was instigated by Yost, he was not coerced into any action, and, thus, the incident was not hazing. fered physical and mental injuries and was forced to drop out of school due to an incident that occurred in connection with the Phi Psi fraternity. tion of risk, alleging Jones voluntarily engaged in the hazing activities. Jones claimed his participation was “not necessarily voluntary.” tices yet continued to show up for hazing events, and (3) covered up the hazing incidents to school officials and his doctors even though he knew the hazing would continue to occur. found significant the facts that Jones (1) knew “between 20% and 40%” of his class had withdrawn from pledging, (2) knew of the hazing prac- 34306-mqt_97-1 Sheet No. 13 Side B 01/13/2014 11:22:05 01/13/2014 B Side 13 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 14 Side A 01/13/2014 11:22:05

Ex . Id. 3:41

, the de- Id. Yet, in in Yet, 169 and have re- have and However, if con- if However, Lenti I II

Id. In In 162 Lenti notes 148–55 and accompa- and 148–55 notes ). supra 19 19 and and

Lenti I ( Jones Jones v. Kappa Alpha Order, Inc. (

, see also Lenti I Several other courts have followed followed have courts other Several the court expounded on the victim- the on expounded court the 168 see, e.g. 166 ),

), 260 N.Y.S.2d 284 (Nassau Cnty. Ct. 1965). Ct. 1965). Cnty. (Nassau 284 N.Y.S.2d ), 260 People v. Lenti 170 ), 253 N.Y.S.2d 9, 15 (Nassau Cnty. Ct. 1964). Ct. Cnty. 1964). 15 (Nassau 9, ), N.Y.S.2d 253 HAZING CONSENT HAZING court went on to note that even if the victim victim the if even that note to on went court Lenti II ( Lenti I Lenti II Lenti , the court held that consumption of alcohol by a pledge during col- note 134, at 386; 386; at 134, note

Lenti I ) 11/25/2013 Oja 165 supra Oja v. Grand Chapter of Theta Chi Fraternity, Inc., 667 N.Y.S.2d 650, 651– 650, N.Y.S.2d 667 Inc., Fraternity, Chi of Theta Chapter Grand Oja v.

, ELETE D The defendants asserted the victim-consent defense, but but defense, victim-consent the asserted defendants The In addressing this issue of victims’ consent, the court in in court the consent, victims’ of issue this addressing In The The OT OT at 11. at 15. at at 287. 287. at 287–88. at 163 167

164 N O proposed that the New York legislature amend the criminal criminal the amend legislature York New the that proposed People v. Lenti (D . Id. . Id. . Id. . See, e.g. . Id. . Id.

10 Barran), 730 So. 2d 203, 206–07 (Ala. 1998); In 162.( People Lenti v. 163 164 165 166.( People Lenti v. 169 170. Pelletier, 167 168 M K ARKS C Y lege fraternal organization hazing or initiation ritual may be considered involuntary parte fused to allow consent to serve as a defense in hazing cases. the reasoning laid out by the court in fendants were charged under the New York criminal hazing statute for “[willfully], wrongfully and knowingly” assaulting victims by them about the body “striking and face with clenched fists, open hands, forearms and feet.” consent defense, explaining that should “[c]onsent not be a bar to prosecution” and of that the victim-consent defense the pledges was not applicable in certainly cases where “the public conscience and morals are shocked.” Lenti II hazing statute to include explicit language barring such defenses in hazing cases in the state of New York.

2013] 2013] York court in the case of P consented, “consent is not a carte blanche bridged assault.” license to commit an una- Thus, a survival action for conscious pain and suffering of a pledge who suffers fatal injuries as a result of ingestion is not barred where drinking is imposed upon pledges, and their obedience extracted, as an express or implied condition of membership. for resulting loss. any economic may recover estate only an sumption is voluntary, 53 (Sup. Ct. 1997). In cases where there is no explicit statutory consent language as barring a defense, the hazing cases use usually of turn on the facts of and whether the a jury decides case that the victim-pledge voluntarily participat- activities. ed in the hazing consent.” the court dismissed such a defense and noted that in order for consent to be a successful defense, there must have been an affirmative act by the alleged victim which was not induced through either fraud or deceit and “that the act performed should not exceed the extent of the terms of 34306-mqt_97-1 Sheet No. 14 Side A 01/13/2014 11:22:05 01/13/2014 A Side 14 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 14 Side B 01/13/2014 11:22:05 M K PM

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, William 178 The court court The 175

177

[97:1 [97:1 174 He was informed that, that, informed was He 173 Quinn asserted that he was was he that asserted Quinn 172 MARQUETTE LAW REVIEW LAW MARQUETTE , Sherdene Brown was found guilty of complicity to ) 11/25/2013 Quinn alleged that, as an eighteen-year-old freshman freshman eighteen-year-old an as that, alleged Quinn ELETE D 171 The court continued: The court continued: OT OT at 1198. 1198. at 176 1197. at N O Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity State v. Brown (D . Id. . Id. . Id. . Id. . Id. . Id. . Id.

10 pressure was applied to [Quinn] to comply . . . perhaps to the extent of blinding [Quinn] to any dangers he might face. To the extent that [Quinn] acted willingly, liability can be negligence. him under principles of comparative transferred to It is true that [Quinn] could have avoided the situation by by situation the avoided have could [Quinn] that true is It walking away from the fraternity. In that respect, [Quinn’s] actions in participating in the ceremony were the voluntary. complaint Yet, alleges, as membership in was the a “much valued defendant status.” It fraternity can be assumed that great social In 171. Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity, 507 N.E.2d 1193, 1195 172 173 174 175 176 177 178 In In his complaint, Quinn alleged that the fraternity did more than ARKS registered a .25 blood-alcohol content (BAC). left asleep for fourteen hours before he awoke, went to a hospital, and simply furnish him with alcohol, but rather required him to the drink point of past intoxication to be initiated into the fraternity. (Ill. App. Ct. 1987). Ct. 1987). (Ill. App. nying text. 20 20 P at its peak, his his BAC at near its fatal peak, levels. was likely at In finding that Quinn had a cause of action court noted that “the social against pressure that exists” when a student the pledges fraternity, the a fraternity “is so great that manner.” acting in a coerced places him or her in a position of compliance with initiation requirements agreed and held that the “plaintiff was coerced into being his own exe- cutioner.” pledge, he was directed to drink a forty-ounce pitcher of removing it from his lips, was brought to a tavern beer and instructed to drink without from an eight-ounce whiskey bottle, and floor to sleep after becoming unconscious. was placed on a hardwood Quinn brought a negligence suit against Beta Theta Pi Fraternity after he suffered neurological damage to his hands and arms following a night of drinking. 34306-mqt_97-1 Sheet No. 14 Side B 01/13/2014 11:22:05 01/13/2014 B Side 14 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 15 Side A 01/13/2014 11:22:05

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His parents’ wrongful wrongful parents’ His 186 21 21

182 Brown was a member of Alpha Alpha of member a was Brown of physical discipline used, and (2) (2) and used, discipline physical of 179 The court stated that Nisbet was pres- was Nisbet that stated court The degree 188 . HAZING CONSENT HAZING , Michael Nisbet died after consuming alcohol as Quinn The court also recognized that even though though even that recognized also court The 189 Brown attempted to draw an analogy between the the between analogy an draw to attempted Brown 183 ) 11/25/2013 The court rejected this argument on two grounds: (1) the the (1) grounds: two on argument this rejected court The ELETE D 184 OT OT at 116. 116. at 404. at 113–14. at at 400. 400. at N

187 Nisbet v. Bucher (D . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id.

185 Brown appealed the indictment. the Brown appealed 10 181 The Missouri Court of Appeals agreed with the Illinois Court of 181 182 183 184 185 186. App. Ct. 1997). 113 (Mo. 111, S.W.2d 949 Nisbet Bucher, v. 187 188 189 179. 1993). App. Ct. 399 (Ohio 397, 630 N.E.2d State v. Brown, 180 Brown argued that the pledges knew the pledging process involved In M K ARKS C Y Appeals’ reasoning in the state of Ohio’s hazing statute did not include consent as a valid defense. scious. death action was dismissed by the trial court for failure to state a cause of action, but they appealed alleging that, to gain membership on the St. Pat’s Board, their son was coerced into chugging excessive amounts of alcohol and was denied medical assistance once he became uncon- physical discipline. Nisbet could have walked away, he was “blinded to the danger he was Kappa Alpha at Kent State pline[d]” pledges University by forcing them to stand when on their heads, beating them she “physical[ly] disci- with paddles, and smacking and striking pledges in the face and head. part of the initiation process for the St. Pat’s Board, a campus organization at the University of Missouri at Rolla. sports,” where physical interaction is permitted due to participants. consent of the pledge process and “ordinary physical conduct incident to high contact

2013] 2013] hazing under Ohio’s hazing statute. P sured into drinking alcohol “for the specific purpose of inducing intoxication,” and such consumption was a requirement of his induction into the St. Pat’s Board. pledges did not consent to the Brown was subsequently indicted by a grand jury for complicity to hazing. 34306-mqt_97-1 Sheet No. 15 Side A 01/13/2014 11:22:05 01/13/2014 A Side 15 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 15 Side B 01/13/2014 11:22:05

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When Carpet- When 192

194 The defendant fra- defendant The 191 [97:1 [97:1 193 Meredith skeptically skeptically Meredith 199 , Charles Carpetta was a

196 at 2. at 2.

note 197, The court ultimately held that Carpetta Carpetta that held ultimately court The , Chad Meredith was a freshman at the 195 supra MARQUETTE LAW REVIEW LAW MARQUETTE ) 11/25/2013 ELETE D OT OT On the night of his death, he attended a party with the fra- the with party a attended he death, his of night the On at 1017, 1019. 1019. 1017, at

at 1016. 1016. at 1017. at

N 197 O Plaintiff’s Memorandum, Plaintiff’s Memorandum, Carpetta v. Pi Kappa Alpha Fraternity Meredith v. Montgomery (D . Id. . Id. . Id. . Id. . . Id. . Id. . Id.

10 199 The court found that the term was not unconstitutionally vague be- In 194 195 196 197. Plaintiff’s Memorandum of Law in Opposition to Defendant Travis Montgomery’s 198 190 191 192. Carpetta v. Pi Kappa Alpha Fraternity, 718 N.E.2d 1007, 1011 (Ohio Ct. C.P. Lucas 193 In ARKS cause “coercing” simply meant any act that caused engage act in any of initiation. another person to bar, and a brothel; forcing him to sit alone in a dark room for extended periods of time; and forcing him to kneel in rats’ blood. University of Toledo student pledging the Pi when fraternity Kappa members ridiculed Alpha him by fraternity yelling and swearing at him; requiring him to go on a scavenger hunt to an adult bookstore, a gay ta quit the pledge process and dropped out of against the school, fraternity under Ohio’s he hazing statute. brought suit ternity filed a motion for summary judgment alleging that the statute’s term “acts of coercion” was unconstitutionally vague. ternity’s grand master of ceremonies and the fraternity’s president.

22 22 facing” by the great social pressure applied by the St. Pat’s Board. P Motion for Summary Judgment and Defendant David May’s Joinder Therein at 2–3, dith Mere- v. Montgomery, No. 02-1135, 2004 WL 5913350 (Fla. Cir. Ct. Memorandum]. Plaintiff’s [hereinafter at *1–2 25969631, Feb. 17, 2004), 2003 WL Cnty. 1998). 1998). Cnty. could recover for any physical harm inflicted by emotional harm. but not for any mental or the acts of initiation, The two fraternity officers decided they were going to swim in the lake and asked Meredith if he was going to as well. The court concluded that “[i]t is a question what degree [he] was coerced by defendants to consume excessive quan- for the trier of fact as to tities of alcohol and as to what extent his will to make a conscious decision about his alcohol consumption was overcome.” University of Miami and was pledging the Epsilon Beta Chapter of the Kappa Sigma fraternity when he drowned while swimming across Lake Osceola. 34306-mqt_97-1 Sheet No. 15 Side B 01/13/2014 11:22:05 01/13/2014 B Side 15 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 16 Side A 01/13/2014 11:22:05 PM

Of Of 3:41

207 The civil civil The Presuma- 206 203 note 134, at 386 & & 386 at 134, note

205 The plaintiffs ar- plaintiffs The supra 201 23 23 Pelletier, Pelletier, see also note 197, at 5 n.1 (quoting Affidavit of Joel Epstein note 202, at 3. note at 202, 3. note 133; 133; note “The exercise of peer pressure, whether whether pressure, peer of exercise “The 202 supra supra supra supra , HAZING CONSENT HAZING ) 11/25/2013 The jury found that the defendants were each forty-five forty-five each were defendants the that found jury The Part II.A. II.A. Part II.B. Part ELETE 204 D

OT OT at 4 (quoting Defendant, Travis Montgomery’s Motion for Summary Judgment Judgment Summary for Motion Montgomery’s Travis 2–3. at Defendant, (quoting 4 at 200 N

O State Anti-Hazing Laws 208 (D . See supra . See supra . Id. . Id.

10 As noted, most criminal law cases tend to reject consent as a defense 204. Meredith v. Montgomery, No. 02-11335, 2004 WL 5913350, at *1 (Fla. Cir. Ct. Feb. 205. Defendant, Travis Montgomery’s, Motion to Set Aside Verdict and Final Judgment 206 207 208. 202. Plaintiff’s Memorandum, 203. Affidavit of Epstein, Joel 200 201 Meredith’s family brought suit, and the two defendants sought sum- M K ARKS C Y except where the activity is deemed appropriate by courts. law, on the other hand, permits consent as a the victim assumed the defense, risk of the activity in which they especially were harmed or when where injury was a foreseeable risk of participating in the activity. 17, 2004). 17, 2004). and to Enter Judgment in Accordance with Motion for WL 5913714, 2004 24, Ct. 2004), WL Mar. Cir. 5913352 2004 (Fla. No. 02-11335, Montgomery, Directed Verdict at 2, Meredith v. at *1. at 7, Meredith v. Montgomery, No. 02-1135, 2004 WL 5913350 (Fla. Cir. Ct. at *4). WL 2003 25969630, Feb. 17, 2004), at 3, Meredith v. Montgomery, No. 02-1135, 2004 WL 5913350 (Fla. Cir. Ct. at *2). WL 2003 25969483, Feb. 17, 2004),

2013] 2013] asked if they were serious, but attempted the crossing and subsequently drowned. P direct and confrontational or subtle and more disguised is effective particularly when it comes from the fraternity president . . . .” mary judgment, arguing “[t]here is no from the duty consequences of to his own protect voluntary acts.” another adult bly relying on Epstein’s deposition, the jury found in favor of Meredith and awarded his parents nearly seven million dollars each for their pain and suffering. percent at fault, and Meredith was ten percent at fault. at was ten percent percent at fault, and Meredith the forty-four state anti-hazing statutes, about one-third of them bar the use of the victim-consent defense by explicitly barring the defense, applying a presumption against consent or that forced. hazing activity is per se erwise be unwilling to do.” gued Meredith’s acts were not truly voluntary, citing a deposition by Jo- el Epstein (founder of the U.S. Department of Education’s Higher Edu- cation Center for Alcohol & Other Drug Prevention) in which Epstein admitted pledging causes the “pledges to do things that they would oth- 34306-mqt_97-1 Sheet No. 16 Side A 01/13/2014 11:22:05 01/13/2014 A Side 16 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 16 Side B 01/13/2014 11:22:05

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39, 50–51 50–51 39, EHAVIOR B EHAVIOR AND ERSPECTIVE B P [97:1 [97:1 explores the psychologi-

39–40 (1992) (providing a review of

39,

. RGANIZATIONAL RGANIZATIONAL EV O R

RGANIZATIONAL RGANIZATIONAL . Behavior in Escalation Situations: Antecedents, O

SYCHOLOGICAL

214 P GMT

54 Researchers have found that escalation escalation that found have Researchers M

A . 210

in : According to Staw and Ross, escalation escalation Ross, and Staw to According , 213 ESEARCH IN CAD A

9 R (1993). note note 209, at 43–49 (reviewing escalation research and finding

The Escalation of Commitment to a Failing Course of Action: Escalating Commitment in Individual and Group Decision Mak- , 17 in Self-justification theory posits that decision mak- decision that posits theory Self-justification ONSENT A. Escalation of Commitment A. Escalation of 430 MARQUETTE LAW REVIEW LAW MARQUETTE

, 212 C supra ) 11/25/2013 430, ELETE AZING at 40. 40. at D An escalation of commitment situation is characterized by by characterized is situation commitment of escalation An Joel Brockner, Brockner, Brockner, H , Glen Whyte, OT OT

Barry M. Staw & Jerry Ross, Ross, Jerry & Staw M. Barry at 40, 43. 43. 40, at 209 N ROCESSES P O III. (D .E.g. . See id. . See . See . Id. . See

10 The phenomenon of “escalation of commitment” refers to situations 211 210 Few courts, if any, reference psychological theories related to why 209 212 213 214 For example, self-justification theory, which is based on Festinger’s ECISION ARKS where decision-makers commit additional resources to a failing course of action. cal theories that may explain why hazing victims consent to a range hazing activities. of hazing victims may persist to courts fail participate to in fully evaluate hazing (1) the activities. degree to and which (2) the victims Thus, extent consented to which victims’ psychological will come during was the truly hazing experience. over- This Part ing: A Prospect Theory Approach the theoretical variations on escalation the of commitment). effects persist in both group as well as individual decision processes. D statutes). anti-hazing have that (indicating sixteen n.75 states Toward Theoretical Progress 24 24 P ers are reluctant to admit that their earlier decisions were incorrect and thus invest additional resources in an attempt to demonstrate rectness the of cor- those decisions. tendencies are greatest when the decision maker is personally responsi- of action. course ble for the failed (1987). escalation behavior. A variety of theories have been advanced to explain escalation of commitment. A synopsis of some theories is below. theory of cognitive dissonance, is the most prominent explanation for Prototypes, and Solutions support for the self-justification support the hypothesis). for three essential features: costs of continuing the same course of opportunities action, for withdrawal, and uncertainty about the consequences of persistence and withdrawal. 34306-mqt_97-1 Sheet No. 16 Side B 01/13/2014 11:22:05 01/13/2014 B Side 16 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 17 Side A 01/13/2014 11:22:05

360

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360,

. 216 Results Results 219 SYCHOL P PPLIED A Bobocel and Meyer Meyer and Bobocel Accordingly, “if the the “if Accordingly,

J. 217 222

At first blush, it would would it blush, first At 220 25 25 , 79 Escalating Commitment to a Failing Course

HAZING CONSENT HAZING 221 The purpose of their study was to separate the the separate to was study their of purpose The 218 note 209, at 40. at 40. 209, note Whyte found that although personal responsibility responsibility personal although that found Whyte 215 note 211, at 437. ) 11/25/2013 supra supra supra supra ELETE D OT OT at 362. 362. at

at 445–46. 445–46. at N , that “[e]scalating commitment to a failing project will occur in O (D . Id. . Id. . Id. . Id. . Id.

10 The 1994 study by Bobocel and Meyer offered greater empirical in- 218 219 220 221 222. Brockner, 216 217. D. Ramona Bobocel & John P. Meyer, 215. Whyte, The effect of personal responsibility has since been investigated un- Escalation tendencies may also be partly explained by expectancy M K ARKS C Y and justification on escalation of commitment. sight on the responsibilityimpact of personal choice) (operationalized as der a variety of situations, with the results generally supportive of Staw and Ross’s proposition. For example, Whyte’s 1993 study hypothesized, inter alia individual and group decision making regardless of personal responsibility” for sunk costs. theory, which asserts that decision makers assess the subjective expected utility of allocating additional resources based on estimates of the value of goal attainment (i.e., rewards minus costs) and additional the resources probability that will help attain that goal. noted that most previous research confounded personal and public justification. responsibility (1994).

2013] 2013] P of Action: Separating the Roles of Choice and Justification tification is not necessary for escalating commitment justification is sufficient.” and that private seem that the desire to appear consistent—either to others or oneself— is a powerful motive for escalation behaviors. However, because escalation of commitment occurred even when individuals did not justify their behavior to anyone else, Bobocel and Meyer concluded that “public jus- was not strictly necessary, it did significantly was increase not escalation. strictly necessary, it did significantly showed that choice exerts no significant ment but effect that both private and public justifications significantly increase on escalating commit- escalation of commitment to the same extent. reasons for the negative feedback [are perceived to be] unstable rather than stable,” then the decision maker would consider the probability of effects of choice, private justification, and public justification on the decision of whether or not to persist in a failed course of action. 34306-mqt_97-1 Sheet No. 17 Side A 01/13/2014 11:22:05 01/13/2014 A Side 17 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 17 Side B 01/13/2014 11:22:05

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Accord- 225

231 [97:1 [97:1 Prospect Theory: An Analysis of Prospect theory describes how how describes theory Prospect (1979)) (1979)) (noting that unlike the traditional

224 263

223 263, Thus, decision makers in this paradigm paradigm this in makers decision Thus, 230 Whyte’s contention is premised on the assump- the on premised is contention Whyte’s MARQUETTE LAW REVIEW LAW MARQUETTE CONOMETRICA note 209, at 50. at 50. 209, note By contrast, if the decision is perceived to be in the the in be to perceived is decision the if contrast, By 232 E

229

note 211, at 448. 448. at 211, note ) 11/25/2013 Thus, in this paradigm, a decision maker would prefer prefer would maker decision a paradigm, this in Thus, 234 If the decision is perceived to be in the positive direc- positive the in be to perceived is decision the If , 47 supra supra 228 227 supra ELETE D OT OT

at 433. 433. at (citing Daniel Kahneman & Amos Tversky, Tversky, Amos & 50. at Kahneman Daniel (citing Thus, the action one takes may depend upon how the prob- the how upon depend may takes one action the Thus, N O 226 (D . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id.

10 228 229 230 231 232. Whyte, 227. Brockner, 233 234 223 224 225 226 Prospect theory has been proposed as an alternative explanation to In his 1993 study, Whyte contends that prospect theory provides a ARKS would prefer “to take a 50 percent chance on losing $100 and a 50 per- a sure loss of $50.” to accept cent chance of losing $0 than “a sure win of $50 a over 50 chance percent to win $100 a and 50 percent chance to win $0.” self-justification for the behavior associated with escalation of commitment in individual and group settings. risk seeking in the domains of losses, and more risk sensitive to sensitive than losses to gains). risk more and losses, of domains the risk in seeking model’s assumption of risk neutrality, people tend to be risk averse in the domains of gains, Decision Under Risk

26 26 goal attainment to be more favorable and would therefore be more like- resources. ly to commit additional P lem is framed. more compelling justification for escalation behaviors justification than theory. does self- ing to this theory, individuals are risk seeking when choosing two between losing options but risk averse when choosing between two winning options. tion (i.e., it will generate gains), then individuals typically react in a risk- averse manner. Thus, according to Whyte, individuals facing escalation situations prefer to allocate additional resources and increase the probability of a larger loss, rather than to accept the sure loss if they declined to allocate additional resources. tion that individuals facing an escalation dilemma are loss averse. negative direction (i.e., it will generate losses), then individuals will react will generate losses), then individuals (i.e., it negative direction in a risk-seeking manner. people actually behave when confronted with loss situations. 34306-mqt_97-1 Sheet No. 17 Side B 01/13/2014 11:22:05 01/13/2014 B Side 17 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 18 Side A 01/13/2014 11:22:05

. 240 52 PM

UM . H 3:41 EV

R &

. GMT M

. EHAVIOR B

. CAD The Escalation Phenom- RG As such, escalation escalation such, As Studies on employ- on Studies Thus, escalation is is escalation Thus, 237 242 243 , 12 A , 16 O 27 27 Knee-Deep in Big A the Muddy: Study at 52–54. at 52–54.

Proponents of this theory contend contend theory this of Proponents 239 Bowen suggested that in previous esca- previous in that suggested Bowen note 214, note 235 HAZING CONSENT HAZING supra supra note 209, at 52 (citing Michael G. Bowen, note 209, at 54. at 54. 209, note Accordingly, decision dilemma theory posits that that posits theory dilemma decision Accordingly, note 235, at 52; Barry M. Staw, 236 ) 11/25/2013 supra supra supra supra supra ELETE

241 OT OT at 53–54. 53–54. at 56. at

O Brockner, Brockner, 238 27 (1976); Staw & Ross,

(D . Id. . Id. . See id. . See id. . Id. . Id. .

. 10 238 239 240 241 242 243 Self-presentation Self-presentation theory is yet another explanation for escalating 236. Bowen, 235. Brockner, Professor Professor Bowen’s decision dilemma theory has also been offered to Proponents of self-presentation theory also maintain that organiza- 237 M K EHAV ARKS C Y commitment. Self-presentation theory focuses on the effects of an on- looking audience on escalation. explain escalation behaviors. people escalate not in response to negative feedback, but in response to feedback that can be interpreted in multiple ways. tional culture influences escalating commitment. more likely to occur in organizations people that unwilling have to a admit culture failure or that that makes values consistency in behav- ees and organizational culture have found that employees typically act in a manner that is consistent with the organizational values, which is in part a reflection of a self-presentation motive. of Escalating Commitment to a B Chosen Course of Action (1987)). 2013] 2013] P enon Reconsidered: Decision Dilemmas or Decision Errors? for a strategy to work, or allow the collection of more information and the passage of time, which may lead to greater understanding of the situation. behavior is more of a response to a dilemma than it is an act of error because investing additional resources may allow additional opportunities lation research, including Staw’s seminal study in 1976, decision makers received equivocal, rather than negative, feedback about their initial re- source allocation. Thus, they respond to escalation dilemmas by allocating additional resources because departing from a credibility. previous pursuit may compromise that decision makers escalate commitment to failed because they courses want of to action be perceived as able to reach suitable choices. 34306-mqt_97-1 Sheet No. 18 Side A 01/13/2014 11:22:05 01/13/2014 A Side 18 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 18 Side B 01/13/2014 11:22:05

. at M K

su- 251 C Y ROUP 3:41

G SYCHOL P

. Nov. Nov. 1971, External External

MALL OL , 254 S

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High stress re- stress High T

. 245 253 [97:1 [97:1

SYCHOL 255 Groupthink occurs when occurs Groupthink Jury Jury Deliberations in the Trial of Groupthink is a deficient deficient a is Groupthink , P 247 Low group self-esteem is is self-esteem group Low 246 252 A Conceptual Framework Establishing the The first, and most important, an- Groupthink 249 at 270 (alteration in original) (quoting Janis,

B. Groupthink note 246, note note 246, at 270–72. 270–72. at 246, note Irving Irving L. Janis’ Victims of Groupthink supra supra MARQUETTE LAW REVIEW LAW MARQUETTE ) 11/25/2013 A moderate to high level of group cohesion is neces- is cohesion group of level high to moderate A 250 ELETE (1997).

at 270 (citing Irving L. Janis, Janis, L. Irving (citing 270 at D OT OT (citing Paul ‘t Hart, at 270. 270. at 272. at

N O 268–69 There are three antecedent conditions to groupthink behavior: behavior: groupthink to conditions antecedent three are There

(D . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . See id.

248 However, escalation is less likely in organizations where people people where organizations in likely less is escalation However, 10 267,

249. Street & Anthony, 250 251 252 253 254 255 The second antecedent condition, a provocative situational context, 244 245 246. Marc D. Street & William P. Anthony, 248. Street & Anthony, 247 Street and Anthony posit a theoretical relationship between group- 244 . note 247, 43). at 247, note 43). 43).

ES ARKS pra (1) group cohesiveness; (2) a provocative structural faults situational organization. of the context; and (3) are free to admit admit errors are free to or that value experimentation. arises when the group has low group self-esteem and is required to make consequential decisions under high stress. tecedent condition individuation). of groupthink is cohesiveness (i.e., de- induced by the group’s previous failing about decisions the that group’s raise competence and questions moral standards. sults from external threats, with little chance of better the decisions than group the developing ones that led to previous failures. that it tends to override realistic appraisal of alternative courses of tion.” ac- “concurrence-seeking “concurrence-seeking becomes so dominant in a cohesive [in-group] 247, 257–59 (1991); Chris P. Neck & Gregory Moorhead, group decision-making process that has a high probability of producing poor decisions with disastrous consequences.

R 43, 28 28 ior. P Relationship Between Groupthink and Escalating Commitment Behavior threats, such as navigating a crisis situation, behavior[].” concurrence-seeking likelihood of are said “to increase the think and escalation of commitment models. sary, though insufficient by itself, for the development of groupthink. development the insufficient by itself, for sary, though 34306-mqt_97-1 Sheet No. 18 Side B 01/13/2014 11:22:05 01/13/2014 B Side 18 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 19 Side A 01/13/2014 11:22:05 PM

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The 265 These structural faults faults structural These 256 29 29 430). 430).

Each proposition assumes that that assumes proposition Each at

264 note 211,

260 note 246, at 272. 272. at 246, note note 246, at 279. 279. at 246, note supra Third, citing the 1993 study by Glenn Whyte, Whyte, Glenn by study 1993 the citing Third, HAZING CONSENT HAZING 261 supra supra The definition put forth by Street and Anthony Anthony and Street by forth put definition The 259

: A Case Analysis of Groupthink Avoidance and an Enhanced Frame- ) 11/25/2013 263 . 1077, 1077–80 (1992)). (1992)). . 1077–80 1077, ELETE EL

D R

. OT OT at 276–79. 276–79. at 276. at (citing 278 Whyte, at at 277. 277. at 279–86. at N UM O Street & Anthony, Street & Anthony, First, they redefine the concept of group cohesion. Previous re- Previous cohesion. group of concept the redefine they First, Fourth, they assume that group cohesion, as defined in the first first the in defined as cohesion, group that assume they Fourth, (D . See id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. .

258 262 10 257 , H 45 Next, Street and Anthony put forth three propositions, each of The third antecedent condition for the development of groupthink 263. Street & Anthony, 257 258 259 260 261 262 264 265 256 Street and Anthony put forward four assumptions that underlie the Second, they assume that the group is cohesive in the way defined M K ARKS C Y which combines variables from the sponding set groupthink of escalation model variables. with a corre- searchers have maintained that cohesion is comprised of three sions: interpersonal dimen- attraction, pride in or desire for group membership, and task cohesion. concerns structural faults of the organization. the group is cohesive as defined by the first assumption above. above and simultaneously “suffers from one of the other two sets of antecedent conditions in the groupthink model before [being] exposed to an escalation situation.” involve: involve: (1) insulation from critical evaluation and analysis by other significant group members; (2) inadequate decision-making procedures, to include the absence of procedures for searching for information, investi- gating consequences, and proposing alternative actions; (3) a lack of im- partial leadership; and (4) a lack of diversity in backgrounds or ideolo- gies. alleged theoretical link between groupthink and escalation of commitment. U.S. v. John DeLorean work 2013] 2013] P level. they assume that escalation behaviors can and do occur at the group first proposition concerns a group with moderate to high levels of cohe- assumption, increases the tendency to escalate commitment courses of action. to failing consists of only the first two dimensions (interpersonal pride in group membership). attraction and 34306-mqt_97-1 Sheet No. 19 Side A 01/13/2014 11:22:05 01/13/2014 A Side 19 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 19 Side B 01/13/2014 11:22:05

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For those rea- those For Relying on the the on Relying 270 note 257 and accompa- and 257 note 268 [97:1 [97:1 see supra Street and Anthony con- Anthony and Street 273

271 note 246, at 284. 284. at 246, note supra MARQUETTE LAW REVIEW LAW MARQUETTE ) 11/25/2013 ELETE D They explain that while the lack of structural constraints constraints structural of lack the while that explain They The presence of any one of the four structural faults is said said is faults structural four the of one any of presence The OT OT 280–81. at 282. at faults, structural of types four the For 284. at at 280. 280. at N 274 272 O (D . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id.

10 The second proposition concerns a highly cohesive group that is sub- 274. Street & Anthony, 267 268 269 270 271 272 273 266 ARKS ject to various elements of the structural faults group of antecedent conditions in the groupthink model before being exposed to an escalation situation. to reduce the probability of the group engaging in a rational assessment of its alternatives before making a decision. within the organization alone retards rational assessment, the additional presence of the psychological and social determinants that urge escalation behaviors further increases the probability that the group will arrive at a decision based upon irrational considerations (i.e., considering sunk nying text. nying text.

30 30 sion that is “suffering from conditions consistent with situational the . before . . context it provocative is exposed to an escalation situation.” P tend that this phenomenon is greater when a group faces an escalation situation. Street and Anthony posit that the group will respond to this precarious situation by escalating commitment to their failing course of action. self-justification and face-saving theories of escalating commitment, sons, Street and Anthony’s groups first suffering from high proposition stress or low contends self-esteem are that more likely escalate to commitment cohesive to failed actions than are cohesive groups not suffering from those conditions. Street and Anthony explain, in essence, that the group’s behavior defense is mechanism a for coping with decisional stress. Thus, the cohesive group is suffering from “stress from external events, low levels of self-esteem, and pressures for concurrence-seeking actions among members prior to being exposed to According an to escalation situation.” Street and Anthony, stress levels, the exacerbating the escalation group’s low situation self-esteem, and thereby increases increases the group’s concurrence-seeking tendencies. 34306-mqt_97-1 Sheet No. 19 Side B 01/13/2014 11:22:05 01/13/2014 B Side 19 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 20 Side A 01/13/2014 11:22:05

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277 NTERGROUP I

& This coordination coordination This 283 ROCESSES 31 31 P

ROUP 279 G The Evolutionary Significance of Affect in

They ultimately contended that that contended ultimately They , 278 HAZING CONSENT HAZING Spoor and Kelly suggest that affect in groups groups in affect that suggest Kelly and Spoor 282 C. Evolutionary Psychology It asserts that cohesive groups characterized by the the by characterized groups cohesive that asserts It ) 11/25/2013 280 ELETE D OT OT at 401. 401. at at 286–87. 286–87. at at 285. 285. at 286. at 286. at

N O This interaction between the structural faults, “the self- “the faults, structural the between interaction This

(2004). (2004). (D 275 . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id.

281 10 Street and Anthony’s third proposition was simply a combination of Spoor and Kelly’s 2004 article situates the phenomenon of group 283 277 278 279 280 281 282. Jennifer R. Spoor & Janice R. Kelly, 275 276 To summarize briefly, the first proposition concerned the interactive 398

M K ARKS C Y the previous two. members developing shared moods and emotions (collectively referred to under the umbrella term of “affect” or “group affect”) in the context of evolutionary history. justification, information-processing distortion, and face-saving” variables ultimately increases commitment to previous bad decisions. groups characterized by those antecedent conditions are more likely to escalate commitment to failed courses of action than groups not charac- conditions. antecedent terized by those sion and structural faults. According to Street and Anthony, those two propositions demonstrated the relationship between the two sets of antecedent variables and the concomitant social and psychological determinants in the escalation model. effects of group cohesion and a provocative situational the second proposition context, focused on the interactive while effects of group cohe- 398,

2013] 2013] costs). P Groups: Communication and Group Bonding has primarily served as a coordination function. Street and Anthony’s second proposition asserts that operating cohesive with structural groups faults are more likely to escalate commitment to failed structural decisions faults. than groups not operating with think. presence of of groupthink are more like- all of the antecedent conditions ly to escalate commitment to failed actions who are not than characterized by all are of the antecedent cohesive conditions of group- groups 34306-mqt_97-1 Sheet No. 20 Side A 01/13/2014 11:22:05 01/13/2014 A Side 20 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 20 Side B 01/13/2014 11:22:05

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Such ex- Such One con- One 294 Emotional Emotional 289 288 [97:1 [97:1 “First, group members’ various various members’ group “First,

284 293 Thus, because negative emotional emotional negative because Thus, 292

290 MARQUETTE LAW REVIEW LAW MARQUETTE ) 11/25/2013

ELETE 287 at 401–02. 401–02. at D OT OT at 402–03, 405. 405. 402–03, at 403. at 404. at 402. at 402–03. at

N O (D . Id. . Id. . See id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id.

10 Spoor and Kelly also contend that group members profited from the Spoor and Kelly also use an evolutionary perspective to explain the 286 287 288 289 290 291 292 293 294 284 285 Spoor and Kelly contend that the development of mechanisms such ARKS development development of affect regulation and control mechanisms that maintain the level of affect that is appropriate for a desired outcome. differing adaptive benefits of positive and negative affective states. states typically “conveyed critical survival information about the environment, group members may be particularly aware of the presence of the group.” within negative emotions sequence of such mimicry is the “convergence [of] mood and emotions across group members,” resulting throughout the group. in a homogenous emotional state affective reactions can quickly provide information about the environment, group structure, and group goals to other group members . . . .” contagion refers to the automatic processes through which mimic individuals and synchronize their facial expressions, vocalizations, and movements with those of posture,individuals other in the group. as emotional contagion and interaction synchrony have been advanta- geous for group survival throughout evolutionary history.

32 32 function can take one of two forms. P states had the effect of promoting collective action in response to negative aspects in the environment. Communication of positive affective states had the effect of promoting cooperation within groups, while communicating negative affective In other words, shared affect communication coordinates function. Second, shared group affect can mobilize members efforts to- through a ward group goals through fostering group bonds “These two and functions of group group [affect] loyalty. are closely related and mutually reinforcing.” 34306-mqt_97-1 Sheet No. 20 Side B 01/13/2014 11:22:05 01/13/2014 B Side 20 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 21 Side A 01/13/2014 11:22:05 PM

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301 This aspect aspect This 295 In explaining explaining In 298 Spoor and Kelly contend contend Kelly and Spoor 33 33 . 210, 220–21, 225 (1994)). (1994)). 225 210, 220–21, . 302 ULL The Relation Between Group Cohesive- B

. SYCHOL , 115 P , 115 HAZING CONSENT HAZING note 282, at 406. Second, the coordination component of group group of component coordination the Second, By contrast, affect regulation to communicate communicate to regulation affect contrast, By 304 296 Group cohesion is a “multi-dimensional construct construct “multi-dimensional a is cohesion Group

supra 299 297 ) 11/25/2013 Ultimately, “the development of group cohesion serves serves cohesion group of development “the Ultimately, Third, “[t]he final component of group rapport, positive positive rapport, group of component final “[t]he Third, ELETE 300 305 at 405. 405. at D OT OT (citing Brian Mullen & Carolyn Cooper, at 405–06. 405–06. at First, experiencing group rapport makes members “more at- “more members makes rapport group experiencing First,

N 303 O Spoor & Kelly, Spoor & (D . Id. . Id. . Id. . Id. . See id. . See id. . . Id. . Id. . Id. . Id.

10 Spoor and Kelly propose that the second primary function of shared 298 299 300 295 296 297 301 302 303 304 305 Group rapport is similar to group cohesion and has three compo- M K ARKS C Y affect in groups is to coordinate group action through facilitating the development of group member bonds and group loyalty. ness and Performance: An Integration rapport is identical “group rapport to can be indexed by regulation of the interaction interaction that co- synchronization, ordinates the behavior of participants suggesting and provides predictable patterns that of behavior.” that includes positive interpersonal interaction, task commitment, and group pride.” of the communicative function highlights the mogenous and importance heterogeneous levels of affect within the group. Homog- of both ho- enous levels of affect in a group might be important for specific the group pursuit of goals. reasons. that developing group rapport is beneficial to group survival for several nents: “mutual attention and involvement, coordination among participants in the interaction, and positive affect.” to create bonds between group members, loyalty to the groups, and pos- completes together.” toward tasks that the group itive feelings group affect, Spoor and Kelly focus on two constructs: group cohesion and group rapport.

2013] 2013] plicit affect regulation strategies group’s status hierarchies, as well as its larger group goals. can function to communicate the P status differences stresses the importance of heterogeneous levels of affect within groups. tentive and easily influenced by each other,” suggesting that the development of group rapport influences group emotional members’ contagion. susceptibility to 34306-mqt_97-1 Sheet No. 21 Side A 01/13/2014 11:22:05 01/13/2014 A Side 21 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 21 Side B 01/13/2014 11:22:05

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(2007).

(2006).

311 780

135

780,

307 135, . Study 1 and Study 2 2 Study and 1 Study [97:1 [97:1 SYCHOL 314 P Contrary to folk wis- folk to Contrary

. 312 OC S ELATIONSHIPS

R In other words, the simple & 309 From Social Talk to Social Action: Shaping the ERSONAL P

ERSONALITY ERSONALITY P , 13

Interpersonal Interpersonal Chemistry Through Negativity: Bonding by , 93 MARQUETTE LAW REVIEW LAW MARQUETTE D. Ingroup-Outgroup Dynamics ) 11/25/2013 This shared understanding of the world can be used to to used be can world the of understanding shared This ELETE at 793–95 (reporting and discussing the results of Study 4, which extended 310

D OT OT at 791–92 (reporting and discussing the results of Study 3, which extended the at 137. 137. at at 780, 786, 790 (reporting and discussing results of Study 1 and Study 2, which which 2, Study and 1 Study of results discussing and (reporting 790 786, 780, at

N O (D . See id. . Id. . Id. . Id. . See id. . Id. . Id.

The power of shared negativity in friendship formation was tested tested was formation friendship in negativity shared of power The 10 313 311 312. Jennifer K. Bosson et al., 310 309 The 2007 study by Peters and Kashima provides further insight on 306 307 308. Kim Peters & Yoshihisa Kashima, 313 314 Bosson and colleagues conducted an empirical test on the folk belief ARKS the communication function of shared affect by examining the emotional role sharing of (i.e., the social sharing of emotional social talk). Sharing Negative Attitudes About Others two previous studies to confirm that the creation of the shared worldview was in fact due to emotion sharing). the three previous studies to confirm that emotion sharing does in fact lead to the creation of coalitions). unite previously separate groups in coordinated social action. groups in coordinated social separate unite previously focused on the three simultaneous consequences of emotion sharing). sharing). of emotion consequences simultaneous on three focused the act of sharing an emotional experience can create unique bonds between can create unique bonds experience act of sharing an emotional the audience and the narrator, and in turn foster a shared understanding of the world. required participants to list the positive and negative attitudes that they that shared positive feelings—as opposed to shared negative feelings— facilitate stronger bonds between two people.

34 34 and affects group cohesiveness” closely tied to group affect, is stability. P would promote closeness more readily than sharing a liking for that target. dom, they proposed that two people sharing a dislike of a target person Social Triad with Emotion Sharing Social with Triad by measuring and manipulating the extent to which people shared specific negative and positive attitudes about others. tween people, informing them about their shared position in the ronment, envi- and coordinating social action. Taken together, the group cohesion and rapport determine the strength of the social bonds within a group and in turn the group’s ability or ina- bility to effectively coordinate the pursuit of group goals. Results of their study revealed that emotional function (affecting what they call the “social triad”) by creating links be- sharing can perform a 34306-mqt_97-1 Sheet No. 21 Side B 01/13/2014 11:22:05 01/13/2014 B Side 21 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 22 Side A 01/13/2014 11:22:05

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In oth- In attitude attitude 319 strong

317 35 35 (1973).

Results revealed that people tend to to tend people that revealed Results 315 Superordinate Goals in the Reduction of Intergroup 163–64

163, HAZING CONSENT HAZING

. 318 In the context of their study, this means that that means this study, their of context the In 320 Cohesiveness Cohesiveness as a Determinant of Ingroup-Outgroup Bias SYCHOL Muzafer Sherif, ) 11/25/2013 P

. Dion hypothesized that “ingroup cohesion would in- would cohesion “ingroup that hypothesized Dion

OC ELETE S 321

316 D & see see also OT OT at 143. 143. at 146. at 137. at ; 140. at N O (D . Id. . Id. . Id. . Id. . Id. . Id. . Id.

10 soon meet. Participants then rated their feelings of closeness to the other participant. Participants first indicated both a positive and a negative attitude toward a fictitious target shared person either their and positive or then their negative attitude learned about target the that with another participant they whom they believed they would Study 3 examined the causal link between the discovery of shared 322 315 316 317 318 319 320 321. Kenneth L. Dion, Taken together, these results suggest that a strong negative attitude Dion’s 1973 study presented the question of what is responsible for M K ERSONALITY ARKS C Y negatives about others and interpersonal attraction. one of the functions of negative groups attitudes and outgroups. is the establishment of in- er words, when people discovered that about the they stranger, they felt shared close to the a stranger regardless of whether or negative. was positive the attitude about a target can be a powerful bonding agent during mation. friendship for- Bosson and colleagues posited that their findings suggest that P

2013] 2013] shared with their closest friends. P Results showed that discovering a shared negative attitude about a target person predicted liking for a stranger more strongly than discovering a shared positive attitude, but only when attitudes were weak. recall a larger proportion of about others. shared negative than positive attitudes crease discrimination toward an outgroup” and, extending past prior researchers, proposed that this relationship may be explained in terms of Sherif and Tajafel. theories propounded by relations the intergroup the discovery of a shared dislike for another person fosters a sense of ingroup solidarity that meets people’s fundamental need for ness and belonging. connected- ingroup bias. 34306-mqt_97-1 Sheet No. 22 Side A 01/13/2014 11:22:05 01/13/2014 A Side 22 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 22 Side B 01/13/2014 11:22:05 , M K PM

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325 [97:1 [97:1 Further, subsequent re- subsequent Further, Tajafel’s theory contends contends theory Tajafel’s 323 324 Group Cohesiveness and the Expression note 322, at 350. note note 322, at 98–99. at 322, 98–99. note Experiments in Intergroup Discrimination Moreover, members of high- of members Moreover, 330 supra supra supra MARQUETTE LAW REVIEW LAW MARQUETTE 349 349 (1958); Henri Tajfel, . 327, 336 (1955))). (1955))). . 336 327,

. ) 11/25/2013 note 321, at 163 (noting a study “finding that persons in highly cohesive note 321, at 164; Tajfel, Tajfel, at 164; 321, note at 168. 321, note note 321, at 163; Sherif, Sherif, at 163; 321, note EL OC R

S .

ELETE J.

. D UM , supra , supra , supra , supra , supra , supra M OT OT at 169. 169. at 164. at 166. at

N He explained that if intergroup bias were a product on a “ge- a on product a were bias intergroup if that explained He , 8 H Dion conceded that the results of his study do not necessarily necessarily not do study his of results the that conceded Dion O The results showed that members of high-cohesive groups ex- groups high-cohesive of members that showed results The Dion Dion Dion Dion Nov. 1970, at 96. at 96. 1970, Nov. 327

328 326 (D 329 . . . Id. . Id. . Id. . Id. . .

., 10 325 326 327 328 329 330 Sherif’s theory posits that competition between groups leads to in- Dion’s study also investigated “whether persons in highly cohesive Results failed to support Dion’s hypothesis that increasing group co- 323 324 AM . CI ARKS tragroup cohesion and intergroup hostility. search on Sherif’s theory suggested that competition produced outgroup hostility because highly cohesive groups competition than groups with low cohesion. became more frustrated by “whether the differential bias toward ingroup versus bers] is more accentuated in highly cohesive outgroup groups than in less cohesive [mem- ones.” cohesive groups evaluated their fellow members more positively than contradict Sherif’s theory; rather, he suggested that the inconsistent result was due to the fact that the inferences he drew from Sherif’s theory and subsequent empirical studies were inapplicable to his experimental design. groups exhibit greater cooperativeness [group and members] admiration than toward do those their in less cohesive groups,” as well as that discrimination toward the outgroup was a product the outgroup. over ingroup to favor the of one ought group norm that a “generic” group. hesiveness would increase exploitation and devaluation of the out- hibit differential biases toward ingroup and outgroup in that high levels of cohesion produced significantly greater cooperation toward group the in- than toward the outgroup. Conflict, 63 A 36 36 P neric” ingroup-outgroup norm, then it would necessarily follow that increasing cohesion would lead to greater norm conformity and, to in the turn, “generic” greater group. exploitation and devaluation of the outgroups are more overtly hostile toward a frustrating agent than groups” (citing Albert individuals Pepitone & George Reichling, in less cohesive of Hostility S 34306-mqt_97-1 Sheet No. 22 Side B 01/13/2014 11:22:05 01/13/2014 B Side 22 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 23 Side A 01/13/2014 11:22:05

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According to Ka- to According 338 37 37 Results largely supported supported largely Results 335 Thus, the effect of feelings of of feelings of effect the Thus, 337 It is important to note that these these that note to important is It

340 Members of low-cohesive groups groups low-cohesive of Members 334 331 HAZING CONSENT HAZING Effects of Cohesiveness and Inferiority upon Ingroup Favoritism . 49, 49 (1988). (1988). 49 . 49, ES R

. ) 11/25/2013

Inferiority significantly decreased ingroup favoritism favoritism ingroup decreased significantly Inferiority 341 336 ELETE That is, “high cohesiveness leads group members to cogni- to members group leads cohesiveness “high is, That D SYCHOL 333 P OT OT at 51, 58. 51, at 58. 51. at at 169. 169. at at 54–55. 54–55. at 55–56. at 57. at

N O (D . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id.

10 332 336 337 338 339 340 341 Karasawa interpreted the results as suggesting that cohesiveness of Karawasa hypothesized that cohesion facilitates social comparison, 334 335. Minoru Karasawa, 331 332 333 In groups with low cohesion, members respond to knowledge of in- Dion interpreted the results as supporting a cognitive differentiation APANESE M K ARKS C Y the ingroup can “buffer” the impact of threats (e.g., knowledge of in- which in turn increases ingroup favoritism. tively differentiate their cohesion group ingroup members fail from to perceive the themselves members as comprising an ingroup. and their outgroup,” fellow while low- rasawa, this low ingroup enhancement motivation desire to rate (i.e., the ingroup positively in the response to an identity lack threat) is of a experienced because members do not strongly identify with the group. inferiority on intergroup behavior is dependent upon the level of cohesion in the group. group inferiority by cognitively denying their membership and ultimately derogating and departing from the ingroup. hypothesis. in groups with low cohesion, whereas inferiority increased ingroup voritism in fa- groups with high cohesion. 30 J

2013] 2013] they did members of an outgroup. P this hypothesis. did not as strongly exhibit either of these biases toward ingroup favoritism. effects are only observed when the outgroup is a for the ingroup. relevant comparator By contrast, groups with high cohesion respond to knowledge that their ingroup is inferior on a certain dimension by on evaluations a different dimension. enhancing their ingroup 34306-mqt_97-1 Sheet No. 23 Side A 01/13/2014 11:22:05 01/13/2014 A Side 23 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 23 Side B 01/13/2014 11:22:05

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136–37

346 135,

. ULL B

. SYCHOL [97:1 [97:1 Sticking Together or Falling P

. OC 617, 617 (1997). (1997). 617 617, S

. That is, facilitating identifi- facilitating is, That & 342 Social identity and self- and identity Social Results yielded support for this this for support yielded Results 350 SYCHOL 344 P

. OC S

ERSONALITY ERSONALITY P &

Ellemers, Spears, and Doosje proposed, proposed, Doosje and Spears, Ellemers, I Belong, Therefore, I Exist: Ingroup Identification, In- , 28

351 Identification with the group is said to pro- to said is group the with Identification 349 347 Perceived entitativity allegedly allows one to to one allows allegedly entitativity Perceived 348 MARQUETTE LAW REVIEW LAW MARQUETTE ERSONALITY ERSONALITY P

) 11/25/2013 , 72 J. The results also “showed that ingroup bias was associated associated was bias ingroup that “showed also results The ELETE D 345 OT OT at 138–40. 138–40. at 140. at at 58. at at 617–18. 617–18. at at 141. 141. at

N O

(D . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id.

343 10 351 345 346 347 348 349 350. Naomi Ellemers, Russell Spears & Bertjan Doosje, 342 343 344. Emanuele Castano et al., Castano and colleagues interpreted this finding as providing evi- A recent study by Castano and colleagues merges insights from Ter- Ellemers, Spears, and Doosje investigated how ingroup identifica- ARKS transcend notions of personal mortality by shifting from a personal to a social identity, because, in contrast to personal identity, social identity is not subject to mortal fate. proposition. both with ingroup identification and ingroup relationships more directly. previous studies that examined these entitativity,” confirming dence for the hypothesis that entitativity and identification are distinct though related concepts. ror Management Theory (TMT) and social identity theory to argue that ingroup members identify more with ingroup when they were reminded of the inevitability of their own death. tion affects fidelity to the group. vide psychological protection against the fear engendered by knowledge of personal mortality. however, that fidelity to one’s group commitment was stemming from a the importance of function that particular of group to psychological Apart: In-Group Identification as a Psychological Determinant of Group Commitment Versus Individual Mobility cation with the group can protect low-status group group members from devaluation in- and promote their tions. ingroup enhancement motiva- group Entitativity, and Ingroup Bias (2002). 38 38 group inferiority) on ingroup evaluations. P categorization perspectives suggest that fidelity to one’s group is determined by the group’s status, the availability of need alternatives. for esteem, and the objective 34306-mqt_97-1 Sheet No. 23 Side B 01/13/2014 11:22:05 01/13/2014 B Side 23 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 24 Side A 01/13/2014 11:22:05

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Thus, in this this in Thus, Low identifi- Low 358 355

361 39 39 Low identifiers, by contrast, contrast, by identifiers, Low 363

High identifiers see the group as a a as group the see identifiers High 353 362 These results added further support to the the to support further added results These 360 HAZING CONSENT HAZING This perspective differed from previous re- previous from differed perspective This 352 ) 11/25/2013 ELETE D OT OT at 619, 621. 621. 619, at 623. at 624. at 624–25. at at 621. 621. at 622. at 625. at at 618. 618. at N The exact opposite result was observed for high identifiers. high for observed was result opposite exact The O Results revealed that even in the absence of an identity threat, threat, identity an of absence the in even that revealed Results 356 (D . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id.

359 10 The second study investigated the minimal conditions that are need- These results suggest that identification with the ingroup is a power- 355 356 357 358 359 360 361 362 363 352 353 354 Ellemers, Spears, and Doosje conducted two experiments designed M K ARKS C Y ed for the emergence of ingroup identification effects. ful determinant of the desire for individual social mobility, irrespective of threats to one’s social identity. search on individual mobility because it proposed that ingroup identification is a cause, rather a consequence, of one’s inclination to engage in behaviors. intergroup individual or tural features, determine commitment one’s group. to low identifiers were less likely to see the group as homogenous, had less commitment to the group, and had a stronger desire for individual mobility than high identifiers. claim that the psychological factors, as opposed to the objective struc- to test the effects of ingroup identification on perceived intragroup ho- mogeneity, group commitment, and the desire for individual mobility. homogenous unit and remain committed even when it would be personally profitable to abandon the group.

2013] 2013] the member’s identity. P emphasize the differences of individual group members and, at best, ex- condition, the relative status of the group was unknown to the pants. partici- permeable boundaries (i.e., fixed group memberships). In the first experiment, the participants were members of a ingroup, with either permeable (i.e., flexible low-status group memberships) or im- ers perceived the group as less homogenous, were less committed to the group, and had more of a desire group. for individual mobility to the status 34306-mqt_97-1 Sheet No. 24 Side A 01/13/2014 11:22:05 01/13/2014 A Side 24 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 24 Side B 01/13/2014 11:22:05

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SYCHOL ROUPS P

G . OC S

J. 364

OCIAL 367 . S UR [97:1 [97:1 E Social Social Categorization, Social

Members of minority minority of Members component (a positive positive (a component 371 , 29 ETWEEN B evaluative component (a sense of emotional emotional of sense (a component Social identity, as defined by Tajfel, Tajfel, by defined as identity, Social 365 Ellemers and colleagues explained that that explained colleagues and Ellemers IFFERENTIATION IFFERENTIATION 372 D emotional in Self-Categorisation, Self-Categorisation, Commitment to the Group and Group , note 365, at 372. MARQUETTE LAW REVIEW LAW MARQUETTE supra ) 11/25/2013 To test this assumption, they manipulated assignment assignment manipulated they assumption, this test To 368 ELETE D

OT OT 369 at 373–75. 373–75. at 377–78. at 380. at 380–81. at at 372 (emphasis omitted) (quoting Henri Tajfel, Tajfel, Henri (quoting omitted) (emphasis 372 at

N component (a cognitive awareness of one’s membership in a a in membership one’s of awareness cognitive (a component O According to Ellemers and colleagues, this definition suggests suggests definition this colleagues, and Ellemers to According (D . Id. . Id. . Id. . Id. . Id. . Id. . Id.

366 10 366 368 369 370 371 372 Next, Ellemers and colleagues argued that each aspect of social iden- 367. Ellemers et al., 364 365. Naomi Ellemers et al., Results confirmed that the evaluative component of social identity, In a and 1999 analyzed Ellemers distinguished article, and colleagues (1999).

ARKS tity is differentially affected by specific group characteristics or the social context, namely relative whether membership in the group group was assigned as opposed size, to achieved relative or self-selected. group status, and groups report both strong self-categorization strong personal identification. as group members and ed groups. criteria (self-selected versus assigned), membership status (high versus low), and the relative size (majority versus minority) of artificially creat- group self-esteem, is only affected by the relative status of the ingroup. (Henri Tajfel ed., 1978)). (Henri Tajfel 1978)). ed., 371 40 40 hibit indifference to continued group membership under both threaten- conditions. ing and more neutral (i.e., uncertain status) P Self-Esteem as Related but Distinct Aspects of Social Identity the components of social identity. is “that part of knowledge an of individual’s his membership self-concept of which a with social derives group the from (or value groups) his and together emotional ship.” significance attached to that member- Self-categorization, Self-categorization, the cognitive dimension of social identity, is solely dependent upon the relative size of the ingroup. cognitive social group—self-categorisation), an or negative value connotation attached group self-esteem), and to an this group membership— commitment).” with the group—affective involvement that three separate components contribute to one’s social identity: “a Identity and Social Comparison 34306-mqt_97-1 Sheet No. 24 Side B 01/13/2014 11:22:05 01/13/2014 B Side 24 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 25 Side A 01/13/2014 11:22:05

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ESEARCH R

Accord- 378 380 SYCHOLOGY P The commitment fac- commitment The 382 41 41 OCIAL OCIAL S when the group [has] relatively or A Multidimensional Approach to Organizational ERSONALITY ERSONALITY AND P in HAZING CONSENT HAZING , ) 11/25/2013 According to Ellemers and colleagues, this result implies implies result this colleagues, and Ellemers to According ELETE D 375 OT OT at 385. 385. at (emphasis omitted). Commitment to the group was “enhanced when people have have people when “enhanced was group the to Commitment at 176–77. 176–77. at 178. at 182. at 383. at 384. at

N 374 O

(Bettina P. Reimann ed., 2008). (D . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id.

As predicted, the data showed that the group commitment aspect aspect commitment group the that showed data the predicted, As 381 10 377

Results revealed six primary dimensions of organizational identifica- Milne and of Duckitt the dimensionality organizational “investigated 380 381 382 376 377 378 379. Jessica Milne & John Duckitt, 373 374 375 Finally, Ellemers and colleagues argued that the three dimensions of 173

M K 376 ARKS C Y high status.” tion and commitment: ingroup affect, commitment, ingroup ties, perception of oneness, centrality, and personalization. identification . . . and . . . identification attitudinal commitment, their and their relationships interrelationship, with hypothesized causes and consequences.” social identity play different roles as mediators iors. of group level behav- ingly, their research was designed to determine the specific dimensions that these concepts have in common and tinct. on which they may be dis- that people may display strong commitment to a group with low status if membership is self-selected or achieved, rather than imposed external- ly. Identification and Commitment self-selected their group membership, 173,

2013] 2013] the fact that strong group identity can be observed even when the group purportedly has low value connotation suggests that self-categorization and group self-esteem are relatively independent and that esteem does group not self- necessarily lead people to avoid self-categorization. P that organizational identification and commitment overlap but are also separate and empirically distinguishable. are concepts that On the basis of previous empirical findings, Milne and Duckitt posited Finally, the data on affective commitment, “the emotional aspect of social identification,” showed that group commitment “depend[s] both on the way groups have been formed and on groups.” the relative status of these of social identity was the only predictor of of social identity ingroup favoritism. was the only predictor 34306-mqt_97-1 Sheet No. 25 Side A 01/13/2014 11:22:05 01/13/2014 A Side 25 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 25 Side B 01/13/2014 11:22:05

390 M K PM

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These findings findings These 385 [97:1 [97:1

The remaining four four remaining The 386 384 (2004).

438 TMT defines self-esteem as a sense sense a as self-esteem defines TMT Pyszczynski and colleagues found found colleagues and Pyszczynski

389 387 , that a person’s cultural worldview and 435,

435,

. E. Need for Esteem Why Why Do People Need Self-Esteem? A Theoretical and Em- ULL inter alia B

. MARQUETTE LAW REVIEW LAW MARQUETTE ) 11/25/2013 SYCHOL Moreover, although much research has used reminders reminders used has research much although Moreover, P

391 ELETE D ,130 OT OT 193. at

at 436, 438. 438. 436, at 436–37. at 437. at N TMT posits, O 388 The ingroup affect factor is a product of both organizational organizational both of product a is factor affect ingroup The (D . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id.

383 10 Pyszczynski and colleagues provided an exhaustive theoretical and 384 385 386 387. Tom Pyszczynski et al., 388 389 390 391 383 In the context of hazing, ingroup-outgroup dynamics may leave fra- ARKS empirical review of research on why people need self-esteem and what psychological function it serves. commitment and organizational identification. self-esteem both serve as an anxiety-buffering function predicament of existential in terror. the human ternity and sorority pledges feeling allied with each big brothers other and big sisters. With such and feelings may come a sense against of be- trayal for or against the pledge who abandons the pledge group even as for the pledges. risky increasingly the hazing becomes factors—ingroup ties, centrality, personalization, and perception of oneness—are products of organizational identification.

42 42 tor is predominately related to the construct of organizational commitment. P agement Theory (TMT) and its explanations of why people need esteem. self- widespread empirical support for the assumption that self-esteem serves an anxiety-buffering function, thus supporting the tenets of Terror Man- pirical Review support the assumption that the primary difference between organizational identification and commitment is that in organizational identification individuals perceive “themselves in terms membership, while in commitment they do not.” of their organizational TMT predicts that people try to defend their cultural worldview they when are threatened by mortality esteem is low. concerns, particularly if their self- of personal value that is obtained by believing in one’s worldview living and up to the standards of value prescribed by one’s worldview. 34306-mqt_97-1 Sheet No. 25 Side B 01/13/2014 11:22:05 01/13/2014 B Side 25 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 26 Side A 01/13/2014 11:22:05

701

, 13 J. 3:41

“Or- 701,

. 393 392 Several Several 395 SYCHOL Alumni and Their Organizational Im- P note 395, at 250). note at 395, 250).

. and “summariz- and OC 397 S

supra supra J.

, 146 43 43 note 395, at 248) (citing Ale Smidts et et Smidts Ale (citing 248) at 395, note Results confirmed the hypothe- the confirmed Results Construed external image, also also image, external Construed supra 399 Q. 239, 239 (1994)). (1994)). 239 Q. 239,

. 396 CI S

. J. 1051, 1051 (2001)). 1051 (2001)). J. 1051,

. DMIN HAZING CONSENT HAZING GMT Construed Construed External Image and Organizational Identification: , 39 A , M

. note 393, at 705. at 705. 393, note note 393, at 704 (quoting Dutton et al., al., et Dutton at (quoting 704 393, note note 393, at 703 (citing Jane E. Dutton et al., al., et Dutton E. Jane (citing 703 at 393, note note 393, at 702. 702. at 393, note . 103, 103 (1992)). 103 (1992)). 103, . CAD ) 11/25/2013 supra supra supra supra EHAV B , A 49 ELETE Specifically, the data showed “no significant relationship relationship significant “no showed data the Specifically, D 400 OT OT at 702, 704 (quoting Dutton et al., at 708, 710. 710. 708, at (emphasis omitted) (quoting Fred Mael & Blake E. Ashforth, Ashforth, E. Blake & Mael Fred (quoting omitted) (emphasis at 437–39. 437–39. at N “[O]rganizational identification occurs when an individual’s individual’s an when occurs identification “[O]rganizational O

394 (D . Id. . Id. . Id. . Id.

398 10 399. Fuller et al., 400 396. Fuller et al., 397 395. Fuller et al., Fuller and colleagues investigated the theoretical explanation of the 394 Fuller and colleagues conducted an empirical analysis on why con- 392 393. J. Bryan Fuller et al., 398. Fuller et al., The Impact of Employee Communication and Perceived External Prestige on Organiza- M K RGANIZATIONAL RGANIZATIONAL ARKS C Y positive relationship between construed external image and tional identification and examined the organiza- extent to which the need for self- esteem accounts for this relationship. strued external image is related to organizational identification. al., al., tional Identification known as perceived external prestige (PEP), “refers to a member’s beliefs about outsiders’ perceptions of the organization” (2006). Alma Mater: A Partial Test of the Reformulated Model of Organizational Identification O 2013] 2013] of mortality (i.e., mortality salience hypothesis) to document the terror management function of self-esteem, such reminders need not be sent functions for of people self-esteem. to pursue the protective pre- P A Test of the Moderating Influence of Need for Self-Esteem self-concept is tied to his or her organizational membership.” es a member’s beliefs about how people likely outside the to organization view are the member tion.” through his or her organizational affilia- ganizational ganizational identification is ‘a perceived oneness with an organization and the experience of the organization’s successes and failures as one’s own.’” antecedents of organizational identification have been identified, one of which is construed external image. be positively related to the member’s organizational identification and (2) that this relationship would be moderated by the member’s need for self-esteem. ses (1) that an organizational member’s construed external image would between construed external image and organizational identification for individuals with low need for self-esteem,” whereas “for individuals with ages and Member Identification 34306-mqt_97-1 Sheet No. 26 Side A 01/13/2014 11:22:05 01/13/2014 A Side 26 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 26 Side B 01/13/2014 11:22:05

401 M K PM

371,

C Y . 3:41 (citing

(1999) SYCHOL

. 969

OC S

(discussing the design

955,

& . [97:1 [97:1 125–26

SYCHOL P 125,

BNORMAL . A

OC J. S

, 67

PPLIED no. no. 3, 1995 at 403

(discussing the acceptance of Milgram’s findings A ,

note 404, at 373–74. at 404, 373–74. note J.

SSUES , 29 I

supra . Fuller and colleagues explained that their their that explained colleagues and Fuller at 126–27

Milgram’s findings have gained widespread widespread gained have findings Milgram’s 402 OC S 405

Constructive and Destructive Obedience: A Taxonomy of Prin- F. Obedience to Authority The Milgram Paradigm After 35 Years: Some Things We Now J.

MARQUETTE LAW REVIEW LAW MARQUETTE Darley “violently object[s],” claiming that there are are there that claiming object[s],” “violently Darley , 51 note 405, 406 ) 11/25/2013 Behavioral Behavioral Study of Obedience supra ELETE D He explains that, unlike the former, the latter commit such such commit latter the former, the unlike that, explains He Thomas Blass, John M. Darley, OT OT at 133. 133. at at 706. 706. at 712–13. at 407 at 711–12. 711–12. at N O Darley, despite protests from the learner and indications that such such that indications and learner the from protests despite (D . . Id. . Id. . Id. . Id. . See . See 376 (1963)). (1963)). 376

404 10 406 407 In his 1963 study, Milgram found that sixty-five percent of partici- 401 402 403 404 405 ARKS cipal-Agent Relationships pants were willing to obey authority and administer an electric shock to a co-participant (hereinafter the “learner”) who pairs, failed to learn word important distinctions between the behaviors of subjects in the Milgram situation and those who commit atrocities, such concentration as the camp “Nazi executioners, doctors, or Serbian children.” snipers who assassinate commit atrocities. acceptance within academia, so much so that some researchers contend that Milgram’s findings can help explain the behaviors of others who and empirical research generalizing the results to other “agentic situations”). “agentic other to results research and the generalizing empirical shocks were dangerous. acts “without supervision of authorities, without external pressure, and they use their intelligence to independently determine how they will do 373–74,

44 44 a high need for self-esteem, the relationship [was] strongly positive.” P Stanley Milgram, Know About Obedience to Authority of Milgram, Milgram’s experiment); These results are consistent with Fuller and colleagues’ hypothesis that “outsiders’ opinion of the organization is likely to the self-concept strongly of influence” individuals with high need for self-esteem “because their feelings of self-worth are strongly dependent on the attention and positive evaluations of other people,” whereas individuals need for self-esteem with “are not strongly a motivated by the need low for others to view them positively.” ple share a similar need for self-esteem” and will accordingly seek to es- tablish the positive distinctiveness of their groups in order to meet their positive self-esteem. own needs for results “challenge the assumption in Social Identity Theory that all peo- 34306-mqt_97-1 Sheet No. 26 Side B 01/13/2014 11:22:05 01/13/2014 B Side 26 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 27 Side A 01/13/2014 11:22:05

415 410 PM

566

3:41

566,

. Relying Relying 411 SYCHOL Participants Participants P

413 . M A

29 ” , 45 45 On “Obedience to Authority HAZING CONSENT HAZING That is, participants might have thought that Mil- that thought have might participants is, That

Commenting on Milgram’s research and his own own his and research Milgram’s on Commenting 416 417 418 ) 11/25/2013

412 ELETE at 135–36, 138. at 135–36, at 142, 147. 147. 142, at D Philip G. Zimbardo, OT OT at 135–36, 140 & 1. tbl. & 140 135–36, at 151. at at 141–42, 145–47, 150. 150. 145–47, 141–42, at 148. at at 133–34. 133–34. at 133. at N Participants modified their proposed behavior in light of this this of light in behavior proposed their modified Participants Instead, they found themselves torn between two incompati- two between torn themselves found they Instead, O 414 409 (D . Id. . id. See . See id. . Id. . Id. . Id. . Id. . See . Id. . Id. . Id.

He further in that the participants contends Milgram situationthe 10 408 411 412 413 414 415 416 417 418 408 409 410 Next, Darley conducted a Milgram-type study involving participants In 1974, Philip Zimbardo wrote a short article contending that Mil- M K ARKS C Y who believed they were in a setting in which they would have to punish someone, although no punishment actually took place. ble perspectives as to the meaning of continuing with the experiment. on the law of agency, Darley concludes that the harm done responsibility in the Milgram situation for rests entirely with the any experimenter as the principal. gram’s experiment provides powerful support for tional the determinants, idea and that not situa- a person’s termine individual behavior. characteristics, de- (1974).

2013] 2013] so.” P information while maintaining the overall aims of the experimenter. were presented with information they believed the experimenter did not have and in this circumstance obedience,” chose in what contrast Darley to calls the “constructive studies. destructive obedience of the Milgram read as implying the same sort of process in those conditions where Mil- gram left the room. According to Darley, this result suggests that Milgram’s data might be Critical to this analysis is the construction of the participant’s meaning of the experimenter’s behavior. Darley posits a taxonomy of situations to categorize the behaviors of a person in authority, the principal, those of and a subordinate, the agent, who acts on that authority. gram would have instructed them differently had he been able to cries. the learner’s hear who continued to administer shocks in accordance with the experimenter’s orders were not, phenomenologically, person. deciding to harm another 34306-mqt_97-1 Sheet No. 27 Side A 01/13/2014 11:22:05 01/13/2014 A Side 27 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 27 Side B 01/13/2014 11:22:05 , M K PM

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Specifically, Lavine Lavine Specifically, [97:1 [97:1 422

Despite the potential inter- potential the Despite 420 423

424

Personality Traits Across Cultures and Research on Obedience 419 MARQUETTE LAW REVIEW LAW MARQUETTE (2009). (2009).

) 11/25/2013 620

Robert Lavine cautions, however, that the emphasis on on emphasis the that however, cautions, Lavine Robert 620,

ELETE . 421 D OT OT

N O SYCHOL (D . Id. . Id. . Id. . Id. . Id.

. 10 M (c) that evil deeds are rarely the product of evil people acting acting people evil of product the rarely are deeds evil that of social forces and “discriminable” stimuli within the situation, which are in fact the potent determinants of action; and (c) from evil motives, but are the product of good bureaucrats simp- job. ly doing their (a) [T]hat obedience to authority requires each of us to first first to pre- us is of each readily so requires manipulated authority be to can we obedience reason the [T]hat that (a) participate in the myth-making process of creating authority fig- ures who then must legitimize their to them; authority submission and obedience dence of our through the evi- (b) cisely because we maintain an illusion of personal invulnerability and personal control, all the time being insensitive to the power Zimbardo concluded that we must focus on acquiring more 419 420 421 422. Robert A. Lavine, As mentioned above, Zimbardo concluded that it is important to fo- 423 424 A

ARKS knowledge about the social conditions that cause us to behave in ways that contradict our morals and expectations and that we must “critically reexamine the ethics and tactics of our revered social institutions, which lay the foundation for our mindless obedience to rules, to expectations, being authorities.” at playing and to people cus on the situational determinants that lead to the uncritical acceptance of authority. situational determinants of obedience to authority should not other obscure factors that contribute to this phenomenon. contends that cultural and personality differences may influence obedience to authority, with the caveat that “such traits probably change over time and generations, are subject to situational and historical variables, and interact with individual differences.” 64

46 46 companion research on prison behavior, Zimbardo noted the three major research themes in each: P active effects, Lavine contends that future researchers should studies that develop take into account the potential impact of cultural factors on authority. obedience to 34306-mqt_97-1 Sheet No. 27 Side B 01/13/2014 11:22:05 01/13/2014 B Side 27 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 28 Side A 01/13/2014 11:22:05

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3:41

Testing 430 171, 172 172 171, . . 20, 21 (1989)) (cit- EV R

. Organizational pres- Organizational GMT , covering (1) financial Carmeli measured or- measured Carmeli 425 M

. 428 47 47 CAD

, 14 A 429 HEORY THROUGH CONVERSATIONS T (2005). (2005). , covering (1) quality of management,

(quoting John P. Meyer & Natalie J. Allen,

economic prestige UILDING 443–44

: HAZING CONSENT HAZING 443,

. G. Organizational Prestige Perceived External Prestige, Affective Commitment, and Citizen- ocial ocial prestige TUD note 425, at 446 note 425, at 449–50. note at 425, 449–50. ] S . 372, 375 (1984)). (1984)). . 375 372,

. S ) 11/25/2013 To Be or Not to Be? Central Questions in Organizational Identification Carmeli identified two forms of perceived organiza- perceived of forms two identified Carmeli RG supra supra supra O 426

RGANIZATIONS ELETE D O SYCHOL , 26 , P OT OT at 444. 444. at 446. at (alteration in original) (citations omitted) (quoting Blake E. Ashforth & Fred Fred & Ashforth E. Blake (quoting omitted) (citations original) in (alteration N

O 427 (D . Id. . Id. . Id.

PPLIED Social Identity Theory and the Organization 10 A Carmeli’s study proposed and tested a model which links two forms 428 426 427 430. Carmeli, 425. Abraham Carmeli, 429. Carmeli, Carmeli put forth three hypotheses: (1) “Both perceived external Next, Carmeli examined organizational identification. Organiza-

M K DENTITY IN I ARKS C Y of perceived organizational prestige with employee ment affective and commit- organizational citizenship behaviors. Mael, tional prestige: “[ ship Behaviors

2013] 2013] P economic prestige and perceived external social prestige augment employees’ affective commitment to their organization, but perceived external social prestige will have a larger impact”; (2) “[p]erceived external economic prestige and perceived external social prestige positive will interactive effects on have employees’ affective commitment to their organization”; and (3) the relationship between both forms of PEP and commitment. affective by citizenship behaviors would be mediated tional identification is the “‘perception of oneness with or belongingness to some human aggregat[ion].’ It occurs about one’s when organization one into one’s integrates identity.” beliefs ing Michael G. Pratt, in the “Side-Bet Theory” of Organizational Commitment: Some Methodological Considerations 69 J. tige refers to an “employee’s own beliefs about how other people side out- the . . evaluate . organization organization.” the status and prestige of the (David A. Whetten & Paul C. Godfrey eds., 1998)). 1998)). eds., C. Godfrey Paul & A. Whetten (David ganizational ganizational identification in terms of affective commitment, which refers to “positive feelings of identification with, attachment organization.” the work volvement in, to, and in- tain talented people, (4) community and environmental responsibility, and (5) innovativeness; and soundness, (2) long-term investment value, and (3) use of organization assets.” (2) quality of products or services, (3) ability to attract, develop, and re- 34306-mqt_97-1 Sheet No. 28 Side A 01/13/2014 11:22:05 01/13/2014 A Side 28 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 28 Side B 01/13/2014 11:22:05

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. EV R EPUTATION R

[97:1 [97:1 . ORP C

, 9

439 Stakeholder theory holds that the organi- the that holds theory Stakeholder Perceived Perceived External Prestige, Organizational Identification 437 Applying that theory to the study by Carmeli Carmeli by study the to theory that Applying 438 MARQUETTE LAW REVIEW LAW MARQUETTE Finally, “the mediating hypothesis was supported supported was hypothesis mediating “the Finally, 433 ) 11/25/2013 Carmeli noted that the data on the second hypothesis hypothesis second the on data the that noted Carmeli ELETE 432 at 92, 95, 101–02. 101–02. 95, at 92, at 93. 93. at D

OT OT at 456. 456. at 460. at at 453, 454 tbl.1. tbl.1. 454 453, at 434 at 459–60. 459–60. at 459. at at 455, 459. 459. 455, at N O (D . See id. . id. See . Id. . Id. . Id. . Id. . Id. . Id.

10 Cognitive identification refers to the “perception that one shares[] Carmeli explained that these results may suggest that organizations Carmeli and colleagues adopted a stakeholder approach to assess 438 439 433 434 435 436 437. Abraham Carmeli et al., 431 432 The results revealed that both forms of PEP affect employees’ affec- 436 ARKS may be perceived as prestigious but not in all aspects of the definition. the impact of PEP on organizational members’ cognitive identification and affective commitment. tive commitment to their organization, though perceived external social prestige may have a larger effect, confirming the first hypothesis. only for the relationship between perceived external social prestige and altruism.” and colleagues involved an evaluation of whether sonal an assessment employee’s of how per- outsiders view the organization fosters cognitive identification and whether such identification ultimately influences an employee’s affective commitment. and Affective Commitment: A Stakeholder Approach (2006).

48 48 P zation should be analyzed from the perspective of the organization’s key interest constituents because they affect, and are affected by, the behaviors of the organization. Carmeli interpreted the results as providing support for the more general hypothesis that when members believe that outsiders have positive perceptions of their organization, they identify more with the organization, and this increased identification is translated into altruistic behavior. However, the findings failed to support the second hypothesis that both forms of PEP would produce a positive interactive commitment. effect on affective contradicts previous research and may be due to the nature of the ting set- in which the sampled employees worked (social workers in health care institutions). 34306-mqt_97-1 Sheet No. 28 Side B 01/13/2014 11:22:05 01/13/2014 B Side 28 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 29 Side A 01/13/2014 11:22:05 PM

3:41

Identify- (1992)).

note 429, at The love love The 816

442 supra 813, The data on the the on data The On the affective affective the On 446 448 49 49 EASUREMENT EASUREMENT M

. Affective commitment refers to to refers commitment Affective 440 SYCHOL Carmeli and colleagues examined examined colleagues and Carmeli P

441 &

. DUC The second hypothesis was also confirmed, confirmed, also was hypothesis second The HAZING CONSENT HAZING , 52 E 52 , 447 note 437, at 94 (quoting Meyer & Allen, Allen, & Meyer (quoting 94 at 437, note note 437, at 102. 102. at 437, note supra supra ) 11/25/2013 No significant effects were observed for customers on on customers for observed were effects significant No These hypotheses were tested on a sample of Israeli Israeli of sample a on tested were hypotheses These 449

444 ELETE 443 D

OT OT at at 94 (alteration in original) (quoting Fred A. Mael & Lois E. Tetrick, 445 at 95. at 97, tbl.2. at 98 102. at N O (D . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id.

10 440 Carmeli and colleagues hypothesized that “[PEP] among competi- 442. Carmeli et al., 443 444 445 446 447 448 449 441. Carmeli et al., Results showed that high PEP (of competitors, customers, and sup- M K ARKS C Y cial category. tors, customers and suppliers is positively related [to cognitive] organizational identification,” and that “[c]ognitive organizational identification mediates commitment.” the relationship between [PEP] and affective component is concerned with the member’s “emotional attraction or af- fection toward the organization as a social category,” while the joy component refers to the happiness that arises from the organization as a so- ing Organizational Identification

2013] 2013] the experiences, successes[,] and failures of the focal organization, and that these successes and failures apply to and reflect upon the self just as they reflect upon the organization.” P pliers) causes employees to develop a higher level of cognitive organizational identification, confirming the first hypothesis. employees who work for four organizations in the electronics and media industries. for the first hypothesis. differences among the three groups of stakeholders was non-significant but differential effects were observed among the three groups with respect to the two forms of commitment-love measure, affective it was found commitment. that employees “who construe the prestige that the competitors and suppliers attribute to their organization as favorable” they report greater love for the social organization category. as a the “positive feelings of identification with, attachment to, and involvement in, the work organization.” two components of affective commitment: love and joy. 375). 34306-mqt_97-1 Sheet No. 29 Side A 01/13/2014 11:22:05 01/13/2014 A Side 29 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 29 Side B 01/13/2014 11:22:05

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and lower levels of of levels lower and [97:1 [97:1 456 This finding is consistent with with consistent is finding This 457 (2009).

Linking Perceived External Prestige and Inten- 247

454 237,

236,

. Results of two separate studies showed that that showed studies separate two of Results H. Symbolic Interaction 455 ES R MARQUETTE LAW REVIEW LAW MARQUETTE ) 11/25/2013

ERVICE On the affective commitment-joy measure, it was found found was it measure, commitment-joy affective the On S

453 . ELETE 450 D OC

OT OT at 102–03. 102–03. at 458 at 242, 245, 247. 247. 245, 242, at 245–46. 242–43, at 247. at 101–02. at

N J.

O (D . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. , 35

10 On the whole, the data suggest that employees attribute consistent 456 457 458 Symbolic interactionist theory is based in part on the assumption Carmeli and Freund developed and tested a model that explores 452 453 454 455. Abraham Carmeli & Anat Freund, 450 451 ARKS care and attention to all reference groups with respect to cognitive ganizational or- identification, but that employees view some stakeholders as more critical to the organization than others with respect to the two forms of affective commitment. that it is through processing interactions with external objects and other how perceived organizational prestige influences job satisfaction, affective commitment, and turnover intentions among Israeli social workers in the nonprofit sector. high levels of perceived organizational prestige cause employees to develop high levels of commitment and satisfaction tions to Leave the Organization: The Mediating Role of Job Satisfaction mitment and Affective Com-

50 50 this measure. P previous research (such as that discussed above) and further the validates relationship between organizational image and tachment. organizational at- intention to leave the organization. commitment.” No significant relation was observed for With respect to suppliers the claim about the on meditating role of cognitive this organi- measure. zational identification, the researchers found support for the assumption that cognitive organizational identification mediates “the between relationship both PEP (competitors) and PEP (suppliers) and affective that when employees “construe the prestige that customers the attribute to competitors their organization and as favorable” report a greater sense of happiness arising from the organization as a social category. 34306-mqt_97-1 Sheet No. 29 Side B 01/13/2014 11:22:05 01/13/2014 B Side 29 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 30 Side A 01/13/2014 11:22:05 PM

3:41 OCIAL OCIAL

S What is dif- 462 ATURE ATURE AND THE The third premise premise third The N 468 UMAN 51 51 , H The ultimate implication is is implication ultimate The 464 The second premise is that the the that is premise second The

467 OOLEY 465 C (1999).

358

ORTON 355,

H . EV HAZING CONSENT HAZING D Symbolic interactionism rests on three prem- three on rests interactionism Symbolic That is, the sense of self that we each develop is is develop each we that self of sense the is, That 466 HARLES 461 Understanding Fraternity Hazing: Insights from Symbolic Interac- Accordingly, how a person understands others, how how others, understands person a how Accordingly, TUDENT note 459, at 359. 359. at 459, note ) 11/25/2013 S

459 C.

Charles Cooley explained this phenomenon in terms of a a of terms in phenomenon this explained Cooley Charles ELETE J.

supra supra at 358. at 358.

460 D , 40 OT OT at 359 (citing C at 361. 361. at

at 359, 361–62 (discussing the theories of role taking and reference groups and N O Sweet, In the context of pledging, the identity of aspirants is influenced influenced is aspirants of identity the pledging, of context the In (D . . Id. . id. See . Id. . Id. . Id. . See id. . Id. . See id. . Id.

(1970)). (1970)).

463 10 469 462 465 466 467 468 469 463 464 460 461 Applying Blumer’s premises, Sweet contends that “hazing is not 459. Stephen Sweet, Another important assumption of symbolic interactionist theory M K RDER ARKS C Y simply the result of psychologically or morally flawed individuals; but is concerns the role that perception and meaning play significant in interactions. an individual’s applying those theories to hazing). hazing). to applying theories those cant. ferent, however, is the group of people we each consider to be signifi- that aspirants come to view the fraternity as the reference which they must gain social approval. group from action that one has with one’s social counterparts. meaning of these things is derived from or arises out of the social inter- tionist Theory looking glass metaphor, in which we each undergo a similar process to develop a self. unique O 2013] 2013] people that individuals develop their sense of self and their understanding of the world. P shaped by our interactions with people significant to us. others come to understand that person, and how a person comes to understand and identify himself or herself are part of the symbolic interaction process. is that these meanings are handled and modified through an interpretive process used by the person in dealing with the things he or she encoun- ters. ises. The first is that individuals “act toward things on the basis of meanings these the things have for them.” because members isolate aspirants from their groups, thereby causing aspirants to ascribe more significance to the fra- other significant social ternity as the relevant reference group. 34306-mqt_97-1 Sheet No. 30 Side A 01/13/2014 11:22:05 01/13/2014 A Side 30 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 30 Side B 01/13/2014 11:22:05

: . J. M K PM

C Y TUD 3:41 S

. , 32 RG , 23 O NTERACTIONISM I

To do so, they they so, do To Narratives of Organiza- 477 475 [97:1 [97:1 YMBOLIC YMBOLIC Symbolic interaction interaction Symbolic These results highlight highlight results These 473 Such an understanding, Organizational Organizational Identification: Ex- , S 479 471 LUMER B (2011). ERBERT ERBERT

472 413–14

Results further indicated that “relationship “relationship that indicated further Results at 363. at 363.

478 (1969)). (1969)). 413,

. MARQUETTE LAW REVIEW LAW MARQUETTE 459, ) 11/25/2013 ETHOD EHAV supra —and the general antecedents of social networks (net- Thus, Jones and Volpe examined the influence of social social of influence the examined Volpe and Jones Thus, B M 476 474 ELETE D Sweet concludes that in order to understand why aspirants aspirants why understand to order in that concludes Sweet Candace Candace Jones & Elizabeth Hamilton Volpe, Sweet, 470 OT OT at 413. Symbolic interaction theory can be contrasted with social identity theo-

415–16. at 416–17. at Brown, D. Andrew & Humphreys Michael (citing 425 at at 358, 362 (citing H (citing 362 358, at

N O (D . Id. . Id. . Id. . Id. . Id. . Id. . Id. . See . Id. . See

at 414. 414. at 10 Results showed that both organizational distinctiveness and “organi- 479 475 476 477 478 470 474 471 Jones and Volpe examined organizational identification from the 472 473 RGANIZATIONAL RGANIZATIONAL ERSPECTIVE AND ARKS zationally affiliated network size positively influenced the individuals’ strength organizational identification of by promoting communication with others” as a way of strengthening commitment to and identification with the organization. work size, network density, and relationship strength). work size, network density, and relationship consent to hazing, one must first understand the subcultural factors that affect their perceptions of hazing situations. networks on organizational identification processes. examined the interactive effects of categorical antecedents two of organizational identification—organizational distinctiveness tional prestige and organizational Identity and Identification: A Case Study of Hegemony and Resistance 421, 439 (2002)). 421, (2002)). 439 P O 52 52 the result of a confluence of symbols, manipulated identities, and defini- tions of situations that are organized in the context of fraternity initiation rites.” P perception of the organization and ultimately stimulate identification with the organization. See id. ry, which focuses on the categorization and comparison processes that inform an individual’s perspective of a symbolic interaction theory. theory emphasizes the importance of social relations in organizational identification. Sweet suggests, will allow one to shape decisions about one’s conduct in situations. the face of hazing strength amplified the effect of organizational prestige on organizational identification,” but that “organizational prestige had no direct effect on organizational identification for this sample.” tending Our Understanding of Social Identities Through Social Networks 34306-mqt_97-1 Sheet No. 30 Side B 01/13/2014 11:22:05 01/13/2014 B Side 30 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 31 Side A 01/13/2014 11:22:05 PM

In In 3:41 , the

482 Nisbet Each of these these of Each In In 484 483

480 53 53

The existence of consent or or consent of existence The 481 ONCLUSION C

IV. HAZING CONSENT HAZING Swift), 198 B.R. 927, 939 n.11 (Bankr. W.D. Tex. 1996). 1996). Tex. W.D. (Bankr. n.11 939 927, B.R. 198 Swift), In re ) 11/25/2013 ELETE , the court assumed that the plaintiff was not coerced. D OT OT

N O Yost , the court found the opposite, suggesting that the social pressure (D . Id.

10 480 481. Swift v. ( Seidler “It would seem that the old saw about what happens when you ‘as- 482. Ct. 2012). (Ind. App. 735 724, Coll., N.E.2d Yost Wabash 976 v. 483. Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity, 507 N.E.2d 1193, 1197 484. App. Ct. 1997). 116 (Mo. 111, S.W.2d 949 Nisbet Bucher, v. A fraternity or sorority pledge may begin a pledge process, and once M K ARKS C Y sume’ proves again to be quite accurate.” Quinn that exists within Greek-letter organization pledging culture to comply with initiation procedures is nearly insurmountable. derstanding of the social science might say about hazing consent. about hazing science might say of the social derstanding they start down the path of being hazed, not realize the stakes associated with the activity. These pledges may believe that there are not ade- quate opportunities to quit and may not know enough about the organization or the pledge experience to properly evaluate the consequences of persisting or quitting. As such, pledges may perceive that if they stick it out for another day and another day and yet another day, they will finally be members. But, months of often, hazing. those days Such thinking may groups, like may pledge turn classes, where be the individual’s identity into is particularly submerged pronounced weeks in or for the sake of the group’s identity and where group members are cases, and the other examples of fraternity hazing may have come to the right conclusion. They, however, appear to leap over what a deeper un- court noted that while the decedent could have walked away, the social pressure to join blinded him to the dangers he faced.

2013] 2013] the type and structure of specific relationships that influence an individual’s organizational identification and ultimately suggest that introduc- ing a social network perspective allows identification.” organizational stand and predict researchers to “better under- P (Ill. App. Ct. 1987). Ct. 1987). (Ill. App. law approach, appears to be imbued with a bit of There armchair theorizing. seems to be an assumption that cannot hazing consent to their “victims” ordeal without truly either reconciling that assessment can or with what social science—the study of human behavior—might have to say. In lack thereof, whether we think about it from the statutory or common 34306-mqt_97-1 Sheet No. 31 Side A 01/13/2014 11:22:05 01/13/2014 A Side 31 No. Sheet 34306-mqt_97-1 34306-mqt_97-1 Sheet No. 31 Side B 01/13/2014 11:22:05 M K PM

C Y 3:41

[97:1 [97:1 MARQUETTE LAW REVIEW LAW MARQUETTE ) 11/25/2013 ELETE D OT OT N O (D

10 While all of this may be true, it is still not universal. For example, a ARKS dangers of hazing—informing him of hazing some specificity. A “buy pledge into” may notion the not of submerging injuries and deaths with the “I” for the sake of the “we.” As such, a pledge may not be interested in the goal of the group—completing the the pledge’s own interest pledge of self-preservation. A pledge may not readily process—vis-à-vis submit to authority or only do so when he mild. A pledge may be interested in joining a fraternity but not perceive perceives the hazing to be the organization as being particularly prestigious, and thus may his not be esteem enhanced by membership. Even more, pledges may feel as though they gain little insight into who they are as a result of the pledge process. Courts and legislatures should be mindful of these basis. a case-by-case consent on factors and evaluate hazing and other society more hazed to be driven to tolerate being widely, the pledge may be a part of such an organization in and of itself but also as a means to enhance his or her own self-esteem. In the end, the pledges may come to gain a deeper understanding of themselves during the pledge process that understanding. to relinquish and be unwilling fraternity pledge may come from a long-line of fraternity men or had have a mentor who was a fraternity man. The “war stories” pledge about may what it have was heard like to be on-line. Before seeking ternity fra- membership, the pledge may have done his homework on fraternity-life and been apprised of what hazing is like. have The provided fraternity a may deep and meaningful education to the pledge on the 54 54 stressed and hampered in their ability to critically evaluate the situation in which they find themselves. Even more, the hostile environment that big brothers or sisters may create for a pledge class between may those forge pledges as a a cohesive bond group in contrast to the big brothers or sisters. Such a bond may be difficult for pledge class members to terminate even for their own self-preservation. And in these where big brothers or contexts sisters exert their authority, pledges may willingly submit to that hazed. authority even Where if the being fraternity or sorority is of high prestige, either on the pledge’s respective campus or in P 34306-mqt_97-1 Sheet No. 31 Side B 01/13/2014 11:22:05 01/13/2014 B Side 31 No. Sheet 34306-mqt_97-1