In November 2011, the Andover High School Boys’ Basketball team made national news for a hazing incident of a sexual nature that allegedly occurred at a private summer basketball camp, not sponsored by or affiliated with Andover High School. Initial reports indicated that two upperclassmen, who were eventually expelled from school, were the ringleaders who pressured at least two younger players to engage in a contest, the loser of which was forced to eat a semen-soaked cookie. While the incident did not occur during school hours, nor was it at a school-sponsored event, Massachusetts’ new anti-bullying laws likely guided the private administrative proceedings that led to the expulsions, and will also serve as the governing law for any criminal charges that may follow; the Bristol County District Attorney’s Office has already convened a grand jury to investigate the matter.
While the media and general public has expressed outrage over the alleged hazing perpetrated by the now-expelled seniors, it is the suspensions handed out to two freshman players that has sparked a civil law suit against the Andover school district seeking an injunction to squash the suspensions and protect their otherwise clean school records. The complaint discloses detailed findings from the school’s administrative proceedings that were not previously made public. The semen-soaked cookie, also dubbed “wet biscuit”, was just one of three options that the team’s newcomers were given as their initiation task- the other two choices included grinding on each other naked, or fondling each other’s nude genitals. The report also highlights ongoing bullying, the likes of which include forcing players to walk through hallways naked, placing bowel movements on their beds, and pouring chewing tobacco spit on the face of one boy.
Under M.G.L. c. 269 sec. 17, “hazing” is defined as any conduct or method of initiation into any student organization, whether on public or private property, which wilfully or recklessly endangers the physical or mental health of any student or other person. Conviction under this statute carries up to one year in prison and a $3,000 fine.
Based on the school administration’s findings, there is certainly prima facie evidence to charge the perpetrators criminally under this statute. The boys were being initiated into Andover High School’s basketball program by the upperclassmen who willfully engaged in specific conduct likely to endanger BOTH the physical and mental health (either one would suffice to convict) of the younger victims.
If charges are brought, and depending on how the Bristol County District Attorney’s Office chooses to proceed, the perpetrators may face more significant sentences under other state statutes. For example, under M. G. L. c. 265 sec. 43(A), the criminal harassment statute, “Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment and shall be punished by imprisonment in a house of correction for not more than 2 ½ years or by a fine of not more than $1,000, or by both such fine and imprisonment.”
Were these acts so egregious that they might cause a reasonable person (or in this case, a reasonable 14 year old) to suffer substantial emotional distress? I think that most people would say yes, especially after the public outrage already showcased in the local media. So if these boys are charged with criminal harassment, and if the school’s findings are expected to be proved at trial, as their attorney I would likely seek alternative ways of resolving the matter short of putting my clients’ fate in the hands of an emotionally-charged jury looking to convict.
Turning to the suspension of the two freshman who had just barely finished eighth grade at the time of the alleged incident,
I believe that their suspensions should be overturned. Andover High School’s Principal Sharkey relied on the “failure to report” statute, M.G.L. c. 269 sec. 18, which states: “Whoever knows that another person is the victim of hazing …and is at the scene of such crime shall, to the extent that such person can do so without danger or peril to himself or others, report such crime to an appropriate law enforcement official as soon as reasonably practicable.”
The freshmen now facing suspensions that could affect their future, specifically with regard to higher education, have a very strong defense to any alleged violation of the anti-hazing statute. Common sense would lead any reasonable person to understand the fear and pressure that these boys likely faced. They have yet to even start high school before they witness the perceived power that the senior, varsity athletes have over the younger players. They witness, first-hand, the horrific humiliation that their peers have suffered at the hands of the older boys. Common sense dictates that these boys were likely scared to death at the thought of reporting the incidents, for fear that they would be next.
But as their attorney points out, there is stronger evidence than just common sense to illustrate the pressure they faced to remain silent. The ringleaders told them personally and in text messages to “keep their mouths shut.” And through Facebook, one ringleader summoned all basketball players to meet and discuss how they were going to “squash any criminal or administrative investigation into the alleged hazing incidents.” A copy of this facebook page is included in the lawsuit.
Even absent common sense and practical knowledge of the vast difference in perceived power between a high school freshman and the senior captain of the basketball team, this facebook page alone should be enough to illustrate the reasonable fear facing the younger boys. This facebook page alone, in my opinion, excuses their failure to report the alleged hazing. I also want to point out that if the author of that post had retained counsel prior to publicly suggesting for the witnesses to “keep their mouths shut,” I can almost guarantee that they were advised to refrain from making such harmful comments. Now, the author could potentially face a criminal charge of “intimidation of a witness”, which carries up to TEN YEARS IN STATE PRISON, significantly more jail time than does the underlying offense.