Ice Hockey – bizarre assault lawsuit dismissed plus the role of consent in hazing rituals

November 2, 2011

criminal law, Negligence

Dante would be proud. Whilst it is comforting not to report on concussion or fighting, hockey has descended to a new and – in a sense – bizarre depth. A case was settled in Connecticut last month in which the mother of a seven year old son sued the mother of another player, claiming that she was assaulted, albeit after allegedly assaulting the defendant’s son. Plus the Royal Canadian Mounted Police have launched an investigation into a hazing incident which allegedly involves a teenage boy walking naked in a locker room with water bottles tied to his genitals.

To begin, Judge Theodore Tyma of Connecticut Superior Court dismissed the lawsuit filed by Madeline Fromageot (click here for the story) which alleged Joan Bennett assaulted her (the extent of the alleged assault was that Fromageot’s headband was knocked from her head during a confrontation) after Bennett came to the defence of her son whose head was being banged against a wall by the plaintiff. Fromageot was apparently exacting retribution for what she perceived as an unfair hit by Bennett’s 10 year old son against her son. In the spirit of an eye for an eye, Fromageot walked over to the players’ bench, grabbed the boy’s helmeted head and began banging it against the Plexiglass wall, yelling ‘don’t hit my son.’ It was after witnessing her son’s head bouncing off the wall that Bennett intervened when the alleged assault took place. Judge Tyma wryly stated that, ‘This case arises from two mothers dispensing with the time-honored notion of playground justice and taking matters between their sons into their own hands.’ The defendant’s lawyer called the decision a ‘vindication of common sense and our system of justice’ and summed it best: ‘The plaintiff’s case didn’t belong in the witness box, it belonged in the penalty box.’

Lastly, The RCMP are investigating an incident in which it is alleged a 15 year old hockey player with the Neepewa Natives of the Manitoba Junior Hockey League (MJHL) boy was forced to walk naked with water bottles tied to his scrotum as part of a hazing ritual. Five players were victimized during the rookie hazing. The MJHL has fined the team $5000, suspended head coach Bryant Perrier two games, assistant coach Brad Biggers five games, captain Danil Kalashnikov five games, assistant captains Richard Olson, Tyler Gaudry and Shane Harrington were suspended three games each and another 12 players were suspended one game each.

The legal system may once again be tested to determine where the line lies between the culture of a sport which permits behavior within and outwith the rules on the playing surface as well as behind the scenes. In a take on the Las Vegas expression, ‘What happens in Vegas, stays in Vegas,’ hockey traditionalists believe that what happens on the ice, or by extension in the locker rooms, should stay there. Generally speaking, the courts have historically taken an similarly accommodating view to the extent that it approves not only intentional and inadvertent legal contact such as open ice hits or checks but illegal conduct such as fighting, boarding or blindside hits. Indeed, such infractions are contemplated in the rule books and are presumed to be understood and consented by all those who participate.

The custom of hazing or inducting a rookie player onto the team involves subjecting the player to demeaning or degrading acts – often involving alcohol – and upon completion of said humiliating acts the player will have passed the test and is accepted onto the team. The role of consent in these rituals in less clear.

Recent incidents in Canada (note that Canada is not unique in this regard), for example, include St. Thomas University (Fredericton, New Brunswick) rookie volleyball player Andrew Bartlett, 21, who was found dead in November 2010 after attending a team party where rookie players were allegedly urged to drink voluminous amounts of alcohol and participate in degrading acts, the Carleton University (Ottawa, Ontario) women’s soccer team was suspended for two games in September 2009 after holding a rookie initiation that involved what the university called ‘serious alcohol abuse’ and inappropriate and irresponsible behavior, McGill University (Montreal, Quebec) cancelled its football season in October 2005 after a university investigation revealed that the hazing involved ‘nudity, degrading positions and behaviors, gagging, touching in inappropriate manners with a broomstick [the 18 year old complainant alleged he was sexually assaulted with a broomstick by an upperclassman as teammates cheered him on] as well as verbal and physical intimidation of rookies by a large portion of the team’ and, finally, the Windsor Spitfires hockey team was fined $35,000 and general manager / coach Moe Mantha suspended one year as manager and 40 games as coach for a hazing incident which involved a small number of players being told to stand naked in the washroom, with the heat turned up, at the back of the bus by other players following an exhibition game (one player, Akim Aliu, who refused to take part was afterwards hit during a practice by teammate Steve Downie with a blindside crosscheck to the mouth knocking out three teeth but that’s another story).

Such initiation rituals were historically regarded as team building exercises and, if they crossed the line of civility, as an unfortunate but essential byproduct of the hockey culture. Former professional player Ryan Johnston states that ‘Hazing is like fighting — part of the game. Part of the game that people who haven’t played it just wouldn’t understand’ (click here for story).

It is interesting that the legal system up until now has not really looked at such incidents. In any other setting, it would surely constitute assault. It would be a stretch to say that the victims consented by their own free will to these acts or that they were not coerced into participating.

Back to the Neepewa Natives. Only after relentless reporting by the Winnipeg Free Press and the national attention given to the story did the RCMP open up an investigation into the alleged incident. Surely there will come a time when incidents such as those listed above will be appreciated by the legal system that they are not part of the game but are symptomatic of a sport gone sideways in need of help to get it back on track and on its proper path.

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