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St. Petersburg, Florida Police arrested a 15-year-old girl on allegations of cyberbullying after discovering hundreds of threatening text messages sent to three of her classmates. Because she did not comply with police orders to refrain from texting the girls, the 15-year-old also got a “tampering with the witness” charge. The teen was arrested and temporarily detained at a Juvenile Assessment Center awaiting trial.
The four girls were formerly friends, but their relationship turned vitriolic after an argument. The suspected cyberbully knew that one of the girls’ relatives had recently committed suicide, and encouraged her via text to do the same.
The young suspect sent texts like “You’re a pathetic piece [expletive], you’re a [expletive], nobody likes you, I hate you so much and I hope to cut you, [expletive].” Even though the girl only sent the texts over the span of eight days, she received a charge of aggravated stalking for each of the girls she bullied. Clearly, the girl was well aware of the traumatic effects of her messaging. To add insult to injury, the 15-year-old self-incriminated by admitting that she stated “if this isn’t bullying then I don’t know what is” in one of her text messages. Nevertheless, the teen denies sending most of the texts.
The Role of Technology in Cyberbullying Cases
Police will identify the sender of the injurious messages regardless of the suspect’s protests. The teen denied sending most of the texts, but in cases which involve technology there is little room for interpretation. In this case, the girl did not use Facebook or typical text messaging; instead, she used “Kik.” Kik is an application created by a Canadian company which allows users to send texts through an internet connection but not a cell phone line. Thus, the girl might have thought she maintained conspicuity. The trick, as always, is that everything posted though the World Wide Web stays in the World Wide Web. In this teen’s case, the invective will be used against her at trial.
What About Massachusetts Law?
Massachusetts does not actually have the “aggravated stalking” charge, since Florida has been stringent with its felony stalking interpretation after young Rebecca Sedwick’s September 9 suicide. Chapter 265 of the Massachusetts Legal Code clearly states in Section 43 (a)(1) that engaging in a “pattern of conduct or series of acts” that would cause a reasonable person to suffer emotional distress can be charged with stalking and punished with up to five years in prison, and a $1,000 fine, or up to two and a half years in a house of correction. The statute specifically names internet and telecommunication devices as covered by the statute’s scope. For the teen’s “tampering with a witness” charge, the young girl would be liable for up to 20 years in prison. As per 18 USC § 1512, she “used intimidation”, threatened and intended to silence the three victims.
As of Nov. 21, all charges have been dropped.
What is “revenge porn” and why it should be criminalized?
Revenge porn is the newest form of nearly legal sexual harassment. Essentially, scorned or malicious individuals post nude or barely clothed photographs of men and women on websites like YouGotPosted.com (hyperlink omitted) in order to embarrass and sexually harass them. Relationships that end badly are no longer resulting in tears, but in resentful and still-legal revenge porn.This trendy Internet concoction is one part sexual harassment, one part stalking, and one part cyber bullying. Thus, it is not only hurtful to persons’ personal reputations and emotional stability, but to their professional careers as well. Since revenge porn websites also display persons’ names and neighborhoods along with their naked photograph, employers become privy to much more than they saw during the interview.
Why is revenge porn still legal?
The concept of revenge porn is difficult to place in one legal category. On one hand, individuals consent to, or intend to send naked photographs, which is legal. On the other hand, the receiver of the naked pictures posts the images online without the person’s consent, which should no longer be legal. Despite the person’s initial consent, revenge porn can qualify as stalking if the person is sufficiently harmed by the effects of the photographs. According to federal statute 18 U.S.C. §2261A, stalking is willful and malicious behavior that “seriously alarms or annoys that person and would cause a reasonable person to suffer emotional distress.” The federal statute also outlines that email or cell phone-induced forms of stalking and harassment are criminalized. Revenge porn evidently raises a privacy issue, and while it could be aligned with stalking, it can also be aligned with cyber bullying. An individual’s unintentional display of nudity on the Internet will not only cause severe emotional hurt, but also a virtual rape of his or her privacy. At the local level, Massachusetts’s law deals with bullying in schools, but adults do not have the same protection.
State law has barely skimmed the surface of sexual harassment crimes
Despite current legislation, the harrowing effects of cyber bullying remain in the news. The finger could be pointed to the fact that the states have not truly recognized forms of harassment like “revenge porn” and cyber bullying. Massachusetts’s statute M.G.L.A. §265 43 (a)(1), which criminalizes stalking, only applies if the person is also put in danger of physical harm. New Jersey is the only American state which upholds that a person who photographs, films, video tapes, records or otherwise reproduces the image of another person’s exposed genitalia or who is engaged in sexual contact is guilty of a third degree crime. There was the case of a fifteen-year-old Silicon Valley girl who hanged herself after photographic evidence of her sexual harassment ended up on all her classmates’ cell phones. Accordingly, California is considering tightening up the laws with Senate Bill 225, which would criminalize revenge porn as a misdemeanor with up to a year in prison and a $2,000 fine.
Revenge Porn Raises Public Policy Concerns
The fact that revenge porn remains legal in most states speaks to recent social trends. People already give Facebook, Instagram, and other social media websites the permission to display intimate details about their lives. Thus, we are more lax about Internet etiquette and privacy laws when we are the ones posting bathing suit shots. The caveat, however, is that people post this information themselves, and they have the ability to decide what the world can see before they click “post.” However, once this information enters the World Wide Web, tame wedding pictures as well as raunchy nudie shots become floaters in a no man’s land. It should not be shocking, then, that so many people are negatively affected by revenge porn; their personal information is posted without their consent for everyone to see.
Opposition to Revenge Porn Criminalization
As expected, those who reject Bill 225 are emphasizing the First Amendment, and are weary of creating a Senate bill against freedom of speech. Electronic Frontier attorney Nate Cardozostated that the bill might “criminalize victimless instances.” However, this argument seems neither strong enough, nor reassuring enough to outweigh the deaths of innocent teens and the “victimless,“ yet affected lives of others. Revenge porn should not enter the American jargon as a taboo topic, but as a crime punishable by the legal system.
“We owe our children, the most vulnerable citizens in our society, a life free of violence and fear.” – Nelson Mandela. Yet, public schools may not be responsible for maintaining an atmosphere free of violence and fear in any situation.
Most people assume that when they send their children to public school, the school administrators are expected and even required to protect them from violence at the hands of other students. Logically, this belief is based on the assumption that, because attendance is compulsory and children are mostly defenseless, the school has a duty to protect them. This should be especially true if the dangers they face come from other students who are allowed to attend school.
The Third Circuit Court of Appeals holds there is no duty to protect.
However, a recent opinion handed down by the Third Circuit Court of Appeals brings into question the contours of a school’s duty to protect. In Morrow v. Balaski, the parents of two high school sisters filed a lawsuit in the Western District of Pennsylvania alleging that school officials denied them substantive due process under the Fourteenth Amendment by not protecting their children from a bully. The Due Process Clause prohibits state and local government officials from depriving persons of life, liberty, or property without legislative authorization. U.S. Const. Amend. XIV.
The bullying in this case involved numerous physical attacks, as well as verbal harassment and threats of further violence by a fellow student. Although the assaults were reported to the police and the bully was adjudicated and found to be delinquent, the school did not expel her, despite the school’s “no tolerance policy.” Instead, the school officials informed the victim’s parents that they could not guarantee her safety and suggested they take their daughters out of the school.
Schools do not have a “special relationship” with their students.
In dismissing the Complaint, the district court held that a “special relationship did not exist” between the school and its students that would have required the school officials to protect them in this situation. The court also held that the injuries were not the result of any “state-created danger.” According to another Third Circuit opinion, one of the reasons for this ruling was the long held principle that “parents remain the primary caretakers, despite their [children’s] presence in school.” The U.S. Supreme Court has yet to rule on this issue and undoubtedly this decision will be appealed, giving the high court the opportunity to weigh in.
States are taking action to protect its children.
Meanwhile, state and local lawmakers are passing legislation in an effort to prevent bullying and protect school children. Each state addresses bullying differently, as shown at www.stopbullying.gov/laws/index.html. In this day and time, when bullying has taken on new meaning, this issue clearly needs to be addressed. Some twenty years ago, bullying was no more than name-calling or a schoolyard fistfight. Now, children are ending their lives as a result of bullying.
Is there a solution?
There is some hope. The U.S. Department of Education’s Office for Civil Rights and the U.S. Department of Justice’s Civil Rights Division address bullying that involves discriminatory harassment. Yet, the question remains — are schools doing all they can? Why didn’t the school in Morrow v. Balaski expel the bully? Many would say that a school system acts responsibly by following its “no tolerance policy” and removing the student making the threats. This is an issue that remains to be decided by our highest court.