CRIMINALLY PUNISHING BULLIES: THE PUBLIC OVERREACTION TO SCHOOL BULLYING
Recent news stories have incited an outcry against bullying and its destructive consequences. The events of Colombine High School illustrated the intense psychological damage to the victims of bullying and the tragedy that can ensue when victims react. In the Internet age, the term cyber-bullying has been coined to describe the new ways bullies taunt, harass, and threaten victims through texting, emailing, and using social networking sites like Facebook and Twitter.
The rising public tide against bullying has motivated and emboldened prosecutors to intervene on behalf of public safety and harshly punish those accused of bullying. While bullying is an act that is universally condemned, in almost all cases, a more measured approach than criminal prosecution is appropriate for addressing the problem of bullies.
The case involving Phoebe Prince is an excellent example. Phoebe was an Irish teenager who immigrated to the United States in 2009. In January 2010, news media widely reported her suicide as a result of students bullying her at school and online. Massachusetts District Attorney Elizabeth Schiebel charged six students with crimes related to Phoebe’s bullying, with the most serious charge carrying a maximum sentence of 10 years in prison.
In a recent investigative piece, Emily Bazelon, a Yale Law professor, provided a more nuanced picture of the events leading to Phoebe’s suicide. According witness interviews, three of the students charged did not even contact Phoebe at any time the week before her death. And instead of the constant three months of abuse that the District Attorney alleges, Bazelon’s sources state that the students who did allegedly harass Phoebe did so at varying times and for nowhere close to three months.
According to Bazelon, Phoebe was taunted and harassed because she had sex with Sean Mulveyhill, who was dating another girl at the time, Kayla Narey. The next month, Phoebe dated Austin Renaud, who had a serious girlfriend at the time, Flannery Mullins. In the following months, Flannery posted on her own Facebook account and obliquely referred to Phoebe as a “gross slutter poser” Irish person and an “Irish slut.”
On January 14, after school ended for the day, Phoebe was taunted by Sean, Kayla, and Ashley Longe, Sean’s friend. As Phoebe walked home, someone threw a drink can out of a car window at her. Later that day, she hung herself.
According to Bazelon, Phoebe apparently suffered tremendous emotional trauma even before she immigrated to America: a friend in Ireland stated that Phoebe began cutting herself before she left for Ireland, and a friend in America stated that she resumed cutting herself sometime after coming to America. Phoebe showed the same American friend her wounds, which started on her chest and went down to her hips. Others state that Phoebe had a deep connection with her father, who her mother divorced and who remained in Ireland, and that Phoebe missed him terribly. Before her death, Phoebe was on Prozac, an anti-depressant medication, and Seroquel, a medication for anxiety and mood disorders.
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The most serious charge against the accused bullies, civil rights violation leading to bodily injury, carries a maximum sentence of 10 years in prison. Defense attorneys expect that the District Attorney will argue that Phoebe was called an “Irish slut,” which is an ethnic slur, and that this civil rights violation led to her bodily injury, i.e., her suicide.
On reviewing the facts described by Bazelon, there’s no question that everyone involved, including Phoebe, was guilty of bad behavior. But do Phoebe’s alleged bullies deserve ten years imprisonment if convicted? It’s hard to believe that such a drastic and heavy-handed response is appropriate considering the circumstances, but District Attorney Schiebel has vowed to fully pursue criminal proceedings against Phoebe’s alleged persecutors. Do we really want the District Attorney to intervene in what amounts to typical high school meanness, even if it involved an especially vulnerable victim and a particularly tragic result?
“People want to think that there’s always legal accountability where there should be moral accountability,” said noted defense attorney and Harvard Law professor Alan Dershowitz. “But in the criminal context, you should always err against overextending the law.” Furthermore, it’s extremely unwise to make policy based on extreme cases. Seeking criminal punishment for what should be considered moral transgressions ultimately does not address the problem of bullying because it fails to distinguish between typical high school antics and acts which actually merit criminal culpability. In most cases, bullies should be punished for their behavior through the normal means of school discipline, not by incarceration. And whether they should be punished by the school administration or the criminal system should depend on what the BULLIES did, not the particular vulnerability of the victim.
In California, though the Education Code describes bullying for purposes of suspending or expelling a student, the California Penal Code does not have a specific crime punishing bullying. (Educ. Code §§ 48900.2, 48900.3, 48900.3.) Instead, the alleged acts of bullying must fall under an existing crime. Examples may include criminal threats (Pen. Code § 422), assault (Pen. Code § 240), battery (Pen. Code § 242), sexual battery (Pen. Code § 243.4), hate crimes (Pen. Code § 422.6), or harassing electronic communication (Pen. Code § 653m).
If you or someone you know has been accused of a juvenile crime related to bullying, you will need an experienced Southern California defense attorney who will vigorously defend you. At Wallin & Klarich, we have helped juveniles accused of crimes for over 40 years. Call us today at (888) 749-0034. We will be there when you call.
