There was a recent blog flare-up in multiply. A U.P. Law student wrote that Cris Mendez is partly to blame for his death. The blog post has already been withdrawn from public access, but the Jester-in-Exile has a copy of the substantial parts.
The reasoning is akin to the doctrine of assumption of risk. In tort law, it is a defense that goes something like: “Plaintiff knew exactly what he was getting into, and willingly put himself in harm’s way”.
The theory makes sense in cases where human agency is not present, or is so diffuse so as to be negligible.
If I climb a mountain and I fall to my death, or if I handle a wild animal with no owner and get gored, these are valid cases of assumption of risk because no human agency is involved (except my own). It’s just the way mountains and wild animals are built, and since they’re not capable of legally recognizable agency, I assume the risk.
But human agency and choice is involved in hazing. Frats are not, and should not be automatically violent the way mountains are automatically tall and risky. At some point, specific persons, real individuals chose to adopt and maintain physical violence in hazing rituals. At some point individuals choose to “sell” the benefits of frats, and incentivize violent behavior within the organization (or at least, not disincentivize it enough).
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