CHARLESTON, S.C. - Prosecutors must rely on a 10-year-old state law that has never been used if they hope to prosecute male Citadel cadets for hazing two female cadets who left the military college.
And legal experts said Wednesday the women might have more success in a federal civil rights suit or suing for damages.
Kim Messer of Clover and Jeanie Mentavlos of Charlotte, N.C., allege, among other things, that male cadets set their clothes afire, put cleanser in their mouths and shoved them.
Both have left school, saying they no longer felt safe or welcome, and have enrolled at the University of South Carolina in Columbia. Eleven cadets face school disciplinary action.
Solicitor David Schwacke said Wednesday he will decide how to proceed after reading a State Law Enforcement Division report expected in about two weeks. The FBI also is investigating for possible federal civil rights violations.
A hazing conviction carries a maximum $500 fine and a year in prison.
The law was passed in 1987 after five white Citadel cadets went into a black cadet's room wearing sheets and towels to resemble Ku Klux Klan members. They muttered obscenities and left a chared paper cross behind.
The school made the white cadets march 195 hourlong tours carrying rifles. The cadets later reached an out-of-court settlement of an $800,000 lawsuit by the black cadet.
The law makes it illegal to "intentionally or recklessly" do something that could physically hurt someone "for the purpose of initiation or admission into or any affiliation with any chartered student, fraternal, or sororal organization."
Eldon Wedlock, a professor at the University of South Carolina law school, said the women were already cadets so the clause does not seem to apply. Another section exempts educational military training.
"The statute is so particular and has these special defenses and exceptions and requirements, it's tough to fit this conduct and these allegations under them," Wedlock said.
In one incident, nail polish remover was set afire on the women's clothes. An unidentified male cadet gave a statement that "the whole time I was in the room, cadets Mentavlos and Messer were laughing and I was laughing as well."
But the law says implied or expressed consent by the victim is not a defense.
Wedlock said authorities could file simple assault charges but a defense the women consented might make conviction difficult.
"All these cases would be tough," agreed Dick Harpootlian, a Columbia defense lawyer and former prosecutor.
He said not all the women's allegations rise to hazing. Name-calling and unwanted sexual advances would be sexual harassment, he said.
Harpootlian said the women could sue in federal court, claiming their civil rights were violated. A lawsuit in state court might turn on liability - that the women paid their money and weren't safe, he said.
Wedlock said state lynching law prohibits mob violence conducted without "color or authority of law." But a defendant might say he had authority as part of military duties.
Federal lynching laws are just the opposite, prohibiting such violence "under color of state law," Wedlock said.
"It would fit more neatly into what has gone on there," he said.
There has never been a prosecution under the state hazing law, the state attorney general's office said.
Schwacke brought hazing charges in the 1993 case of two cadets who assaulted two others. But the charges were changed to assault because he determined the hazing law did not apply.