Should bullying resulting in suicide be a criminal offense?

To follow is an excerpt from the CQ Researcher issue "Preventing Bullying" by Thomas J. Billitteri on December 10, 2010
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The suicides of Phoebe Prince and Tyler Clementi have placed front and center the question of how far prosecutors can and should go in holding alleged bullies accountable for tragic outcomes.

In the Prince case, six teens were charged, five with civil rights violations resulting in bodily injury. Two also were charged with stalking and two with statutory rape. Prosecutors allege that Prince was harassed in school, struck with a can, disparaged online and called “an Irish whore” and “Irish slut.” On the day she died one defendant allegedly used an obscenity to list Prince on a library sign-up sheet. Others were accused of taunting her as she went home in tears. [Footnote 35]

In the Clementi case, the roommate of the Rutgers freshman and another student who allegedly watched the dorm-room encounter were charged under New Jersey privacy law, and prosecutors have been evaluating whether hate-crime law might apply in the case. The students' lawyers say the pair did not record or transmit images of the encounter and that what they saw was tame. [Footnote 36]

These and other suicide cases raise the broad question of whether adolescents who engage in bullying and cyberbullying should be open to criminal charges when the outcome is tragic. Facts and circumstances of the cases matter, of course, but experts say issues of psychology, legal philosophy and science — specifically dealing with adolescent brain development and maturity — also have a role.

“What's the appropriate punishment for these kids?” says the ACLU's Walczak. “I think these issues are going to be percolating in the courts for many years to come.”

In the Rasmussen poll, 69 percent of adult respondents said harassing someone over the Internet should be a punishable crime. [Footnote 37]

Bullying experts point out that when victims harm themselves, their acts often result from a mix of factors, such as problems at home, clinical depression, drug or alcohol abuse and overall feelings of alienation, making it difficult to attribute a suicide solely to harassment inflicted by classmates.

The prevalence of teen suicide also makes the issue of culpability difficult to untangle. Suicide is the third leading cause of death for 15- to 24-year-olds, accounting for 12.2 percent of deaths among adolescents and young adults annually. In 2009, nearly 14 percent of U.S. high school students reported that they had seriously considered attempting suicide during the preceding year, and more than 6 percent said they had made at least one attempt. [Footnote 38]

Still, numerous studies have shown a link between adolescent suicidal thoughts and behavior and peer victimization. [Footnote 39] Hinduja and Patchin, for example, found in a study of 2,000 randomly selected middle school students that a fifth of respondents reported seriously thinking about attempting suicide — a behavior called “ideation” — and nearly a fifth reported attempting suicide.

“Youth who experienced traditional bullying or cyberbullying, as either an offender or a victim, scored higher on our suicidal ideation scale than those who had not experienced those two forms of peer aggression,” they wrote. And victims appeared more inclined toward suicidal thoughts and acts than perpetrators of bullying and cyberbullying. [Footnote 40]

Nonetheless, Patchin says the “hue and cry” to criminalize cyberbullying is “misguided.” Following Clementi's death, Patchin wrote that “the vast majority of cyberbullying incidents can and should be handled informally: with parents, schools and others working together to address the problem before it rises to the level of a violation of criminal law.” [Footnote 41]

If bullying results in a suicide, he says in an interview, “probably somebody should be held to a higher sanction.” But, he adds, “we already have existing statutes that would do. We certainly shouldn't pass a new law saying that if you cyberbully somebody and they commit suicide, you're going to get life without parole. That would be a mistake.”

Limber, the Clemson scholar, cautions, too, that assigning criminal culpability to youthful bullies and cyberbullies is a “tricky question” whose answer must take into account developmental psychology. In the brains of many adolescents, she notes, “the prefrontal cortexes aren't fully developed,” undermining their ability “to plan and to see the consequences of their behaviors.”

Writing in The New York Times about Clementi's death, Paul Butler, a former federal prosecutor and now an associate dean and law professor at George Washington University, argued that suicide is a “rare response” to bullying and that few of the millions of children who are bullied take their own lives.

“Bullies ‘cause’ suicides in the same way that a man ‘causes’ the suicide of a lover he spurns,” Butler wrote. “The criminal law typically does not hold people responsible for outcomes that are idiosyncratic or unpredictable.”

Butler also argued that “when people are punished, it should be for the harm they intend to do. If a bully crosses the line between freedom of speech, and invasion of privacy, or harassment, those are the crimes he should be charged with.” [Footnote 42]

But a number of readers rebuked Butler. One criticized his analogy between a spurned lover and a bullied child, saying: “As a human in this society, you have no obligation to continue loving someone; you do have an obligation not to intentionally inflict harm.” Others blasted Butler's argument that punishment should hinge on intent. “Does this include the drunk driver who didn't intend to kill the people he hit?” a reader wrote.

In a follow-up posting, Butler defended his remarks, saying that “unintentional killers are sometimes prosecuted for negligent homicide, but most such laws require that there be a ‘substantial’ risk that the defendant's conduct would cause the death. Because suicide is a rare response to bullying, it would be difficult for a prosecutor to prove ‘substantial risk’ beyond a reasonable doubt.”

The Issues:
* Are new laws needed to fight bullying?
* Should school officials regulate off-campus electronic bullying?
* Should bullying resulting in suicide be a criminal offense?

For more information see the CQ Researcher report on "Preventing Bullying" [subscription required] or purchase the PDF.

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Footnotes

[35] Stephanie Reitz, “Teen Charged in Mass. bullying case heads to trial,” The Associated Press, Oct. 26, 2010, www.boston.com/news/nation/articles/2010/10/26/teen_charged_in_mass_bullying_case_heads_to_trial/.

[36] The Associated Press, “Rutgers Suicide Case Poses Test For NJ Privacy Law,” NPR, Nov. 4, 2010, www.npr.org/templates/story/story.php?storyId=131075785.
Footnote:

[37] Rasmussen Reports, op. cit.

[38] “Suicide: Facts at a Glance,” Centers for Disease Control and Prevention, summer 2010, www.cdc.gov/violenceprevention/pdf/Suicide_DataSheet-a.pdf.

[39] See for example, Jennifer Wyatt Kaminski and Xiangming Fang, “Victimization by Peers and Adolescent Suicide in Three U.S. Samples,” The Journal of Pediatrics, Vol. 155, Issue 5, November 2009.

[40] Sameer Hinduja and Justin Patchin, “Cyberbullying Research Summary: Cyberbullying and Suicide,” www.cyberbullying.us/cyberbullying_and_suicide_research_fact_sheet.pdf.

[41] Justin Patchin, “Most Cases Aren't Criminal,” “Room for Debate: Cyberbullying and a Student's Suicide,” The New York Times, Sept. 30, 2010, www.nytimes.com/roomfordebate/2010/09/30/cyberbullying-and-a-students-suicide/most-bullying-cases-arent-criminal.

[42] Paul Butler, “Not Every Tragedy Should Lead to Prison,” “Room for Debate: Cyberbullying and a Student's Suicide,” The New York Times, Sept. 30, 2010, www.nytimes.com/roomfordebate/2010/09/30/cyberbullying-and-a-students-suicide/most-bullying-cases-arent-criminal.