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Sunday, October 31, 2010

21st Century Bullying

I wrote recently on the issue of cyber bulling and how the law will respond to it. As a criminal defense attorney practicing in Mecklenburg Courts, I have definitely seen a dramatic increase in assault, battery, domestic violence, and communicating threats cases that originated with an internet post, Facebook post or text message. I have represented both plaintiffs and defendants in 50b protective order/restraining order hearings in Mecklenburg District Court. A recent incident with a family member of a friend in another state gave me further thought on this issue.

'John' is a 13 year old freshman in high school. As with many of his peers, he has an active Facebook account and can be found communicating through friends 30 feet away via text message. John was over at a friend's house one afternoon with his laptop. His Facebook page was open. He left the room for a short period of time. Nothing seemed out of the ordinary when he left that day. John returned home to find family members calling and posts to his Facebook account multiplying. One of John's 'friends' posted the following to John's Facebook page-
I can't take it anymore. I am GAY  and I don't care what any of you think...
The post was removed. However, a high school freshman boy was left to explain this post to his friends and family. John handled this very well but it gave me cause to think about whether the law should criminally punish the act of hurt feelings or embarrassment. Should we only reserve damage to reputation to the civil law arena? Criminal law was designed to punish an injury. Most of the time it's designed to punish a physical injury or the threat of a physical injury, as done in a communicating threats case. However, technology has forced society to reconsider using criminal law to punish public embarrassment to an individual.

Hypothetically, if John decided to retaliate and post a false statement about the Facebook hacker, do we punish John the same as the hacker? Wouldn't a criminal defense lawyer argue John's culpability is less than the hacker? This is a very difficult area of the law. I'm not sure how the legislature will respond to it. It just seems to be a very different world than when I was in high school and the common prank was taping 8.5 x 11 pictures to school lockers on a friend's birthday.

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