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Hazing statute challenged in 2012 fraternity drinking death

Published: Sunday, April 6, 2014 11:46 p.m. CDT • Updated: Friday, April 25, 2014 10:17 a.m. CDT

SYCAMORE — Defense attorneys for the five former Pi Kappa Alpha members accused in the November 2012 death of a Northern Illinois University freshman are claiming that their felony hazing charges are unconstitutional.

Defense attorney Jack Donahue was the first to file a formal request asking a DeKalb County judge to drop the charge against 22-year-old Alex Jandick of Naperville, claiming Illinois’ hazing laws are too vague. The four others charged in freshman pledge David Bogenberger’s death quickly followed suit.

Illinois’ hazing law prohibits people from requiring students to perform any unauthorized act that causes bodily harm in order to be accepted in a group connected with a school. Bogenberger died at the fraternity house with a blood-alcohol level of 0.351 percent after a non sanctioned party in which fraternity members and other guests ordered the pledges to drink vodka, authorities said.

“This hazing statute is incurably vague, not only in application to the defendant, but in all other situations,” defense attorney Richard A. Kayne, who represents 22-year-old Steven Libert of Naperville, said in court records. “The term ‘any act’ is not defined, and it is literally boundless in meaning.”

But DeKalb County prosecutors are arguing Illinois’ law is similar to laws in 17 other states, where hazing laws prohibit any act or method that inflicts physical or mental harm. A hearing on the motion will take place at 1:30 p.m. April 24 at the DeKalb County Courthouse, 133 W. State St., Sycamore.

“Forcing somebody to drink large amounts of alcohol to get into a fraternity is a prime example for hazing,” said Assistant State’s Attorney Julie Visher.

Visher also compared Illinois’ hazing law to the battery law, which says a person commits battery when he or she causes bodily harm or makes insulting physical contact with someone “by any means.” A doctor accused of inappropriately touching a patient unsuccessfully claimed the battery statute was vague in the past, Visher wrote in court documents.

In Bogenberger’s case, Bogenberger’s family has claimed that Bogenberger and 18 other pledges drank several 4-ounce glasses of vodka in rapid succession, but their “Greek parents” decided against calling for medical help – and also told others not to do so, according to a pending wrongful death lawsuit.

Instead, the fraternity leaders and women invited to participate in the nonsanctioned party gave the pledges decorated buckets and positioned their unconscious bodies in a way they thought would prevent them from choking if they got sick, court documents allege.

Peter Coladarci, the Bogenberger family attorney, said there is no serious question that the defendants were engaged in hazing.

Coladarci interviewed members of the fraternity under oath last week and plans to file new information in the wrongful death lawsuit by the end of the month, he said. The wrongful death lawsuit is next due in court April 30 in Cook County.

“In the literature, it says if you think it’s hazing, it probably is,” Coladarci said. “I’ve seen that in risk management handbooks in multiple fraternities, including this fraternity.”

Meanwhile, criminal charges remain pending against Libert as well as Jandick, the fraternity president; vice president James P. Harvey, 22, of Northfield; pledge adviser Omar Salameh, 22, of Burbank; and secretary Patrick W. Merrill, 21, of DeKalb. All five men have maintained their innocence throughout court proceedings.

If convicted, each be sentenced to probation or to between one and three years in prison.

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