I. INTRODUCTION II. THENEED FOR CYBERBULLYING LEGISLATION A. The Negative Effects of Cyberbullying 1. The Differences Between Cyberbullying and Traditional Bullying 2. The Mental and the Psychological Health Effects of Cyberbullying B. The Inadequacy of Existing Legal Remedies for Ohio Victims 1. Ohio Civil Remedies Related to Cyberbullying 2. Ohio Criminal Laws Related to Cyberbullying III. CYBERBULLYING LEGISLATION IN OTHER STATES IV. PROPOSED FEDERAL CYBERBULLYING LEGISLATION V. PROPOSED LEGISLATIVE RESPONSES TO CYBERBULLYING FOR OHIO A. Amendments to Ohio's Current Bullying Statutes B. Model Cyberbullying Criminal Statute or Amendments to the Current Telecommunications Harassment Statute 1. Model Cyberbullying Statute i. Definitional Provision ii. Direct and Indirect Liability iii. Degree of Punishment and Expungement 2. Amendments to the Telecommunications Harassment Statute VI. CONCLUSION
Thirteen-year-old Hope Witsell used her favorite scarves to hang herself from a canopy bed. (1) Thirteen-year-old Megan Meier used a belt to hang herself in a closet. (2) Thirteen-year-old Alex shot himself with his grandfather's antique shotgun. (3) Eighteen-year-old Tyler Clementi jumped off the George Washington Bridge. (4) These teens are among the many victims of cyberbullying and represent bullying's dangerous progression (5) in the digital age. This Note examines cyberbullying's impact on adolescents' mental health and psychological and emotional development and explores the need for Ohio-specific cyberbullying legislation.
Traditionally, bullies' taunts and torments were confined to the schoolyard and halls. Most bullying resembled either a survival of the fittest (6) scenario or psychological warfare; (7) stealing other kids' lunch money and threatening to "punch their lights out," or pouncing on insecurities and spreading viciously false rumors. No matter the type of bully, once the school day ended, bullied victims safely retreated to a peaceful night at home, away from the emotional, physical, and mental abuse. Today, the retreat to home is no longer a retreat to safety. (8) In a wired world, the schoolyard is now the Internet, allowing students to target and inescapably victimize other students through cyberbullying in the playgrounds of cyberspace.
Cyberbullying is the "willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices." (9) Although this is an imperfect definition, it includes four main components that are important in defining cyberbullying: (1) deliberate behavior, not merely accidental; (2) repeated behavior, more than a one-time incident; (3) harm occurred--from the victim's perspective; and (4) it is executed through a technological medium. (10) This phenomenon has recently received worldwide attention because of its negative effect on adolescent mental health (11) and the many cases of cyberbullying-induced teen suicide. (12) In 2004, the Centers for Disease Control and Prevention ("CDC") (13) identified a significant upward trend in total suicide rates for three of six sex-age groups observed in the study: females aged 10-14 years and 15-19 years and males aged 15-19 years. (14) Females aged 10-14 years represented the greatest percentage increase in suicide rates from 2003 to 2004 (75.9%), followed by females aged 15-19 years (32.3%) and males aged 15-19 years (9.0%). (15) Since then, suicide rates among young adults continue to cause national concern, with cyberbullying as a driving force. (16) The nationwide rise in teen suicide and cyberbullying victimization compelled thirty-four states to pass specific cyberbullying laws or to amend state bullying statutes to include cyberbullying or electronic harassment scenarios. (17)
Ohio is not exempt from the nationwide epidemic of cyberbullying-induced teen suicide. In the past five years alone, four teens from Mentor High School took their lives after being tormented and teased for extended periods of time. (18) Each victim endured relentless bullying at school, retreated to a cyberbullying-filled night at home, and developed severe depression and social withdrawal. (19) A similar incident occurred in Cincinnati, Ohio. (20) Jessica Logan was a beautiful high school senior with blonde hair and blue eyes, who aspired to study graphic design at the University of Cincinnati. (21) Unfortunately, a nude photo of Jessica was reportedly sent to her boyfriend, and when the relationship ended, the image soon went viral to four high schools. (22) Students harassed Jessica for months, calling her a "slut" and a "whore" and even throwing objects at herf13 Although the local resource officer, school officials, and local prosecutor's office were aware of Jessica's bullying, each said they could not press charges against or discipline the teens. (24) The resource officer stated that he only help her by asking the students to delete the video and encouraged Jessica to go public with her story, without consulting Jessica's mother. (25) Shortly after the interview aired, however, the abuse intensified. (26) After months of feeling miserable, depressed, and afraid to go to school, Jessica ended her life by hanging herself in her bedroom. (27) This scenario alone warrants the attention of Ohio legislators. Ohio should follow the majority of other states by recognizing cyberbullying's detrimental effect on adolescents' mental health (28) and the exigent need to enact specific cyberbullying legislation.
Cyberbullying-induced suicide and online victimization calls for an immediate response by Ohio legislators. But, Ohio courts should avoid the temptation to prosecute cyberbullies under ill-fit statutes, and the Ohio legislature should avoid enacting knee-jerk legislation that may create unintended consequences that substantially restrict free speech. (29) The Ohio General Assembly should instead respond to this digital trend by amending its current anti-bullying educational statutes (30) to include cyberbullying or telecommunications harassment awareness and prevention within schools. (31) Ohio should also either adopt a specific criminal cyberbullying statute or amend the current telecommunications harassment statute (32) to more closely fit a cyberbullying-type scenario that focuses on conduct between juveniles. (33)
This Note examines cyberbullying's impact on adolescents' mental health and psychological development and explores an Ohio-specific legislative response to the problem. Part II addresses the urgent need for cyberbullying legislation, the inadequacy of Ohio law, and the detrimental effects that may result when juveniles are targeted by cyberbullies. Part III demonstrates how other states have reacted to the cyberbullying problem by amending already enacted bullying statutes or by creating new and specific cyberbullying laws. Part IV proposes a new cyberbullying statute that criminalizes the more extreme cases of cyberbullying, incorporates age as a sentencing factor, and introduces school-employee liability for any reckless or knowing disregard for cyberbullying instances. This section also proposes amending the current bullying statutes applicable to state boards of education.34 Finally, Part V provides forward-looking recommendations about how legislators, parents, and schools should respond to cyberbullying and includes concluding remarks on cyberbullying and the current legal landscape.
II. THE NEED FOR CYBERBULLYING LEGISLATION
Cyberbullying continues to escalate with the proliferation of Internet use and social networking sites. (35) According to the CDC, cyberbullying has evolved into a "public health problem" (36) that cannot be ignored. (37) Because cyberbullies can target victims through a variety of mediums, at any time, cyberbullying is not only more severe than traditional bullying, (38) but has also proven to frustrate adolescents' emotional, psychological, and sociological development. (39) Yet in Ohio, cyberbullying victims lack a specific legal remedy, and cyberbullies may be prosecuted under ill-fit criminal statutes. Criminal laws, such as telecommunications harassment (40) or menacing by stalking, (41) provide harsh sentences for juvenile offenders and do not account for the typical cyberbullying scenario. (42) The Ohio General Assembly should pass specific cyberbullying legislation to address this unique and growing problem.
A. The Negative Effects of Cyberbullying
Before the Internet, bullies dominated the schoolyard. Now, bullies of the twenty-first century release their aggressions online, as cyberspace becomes the "high-tech playground for intimidation." (43) In a study funded by the U.S. Department of Justice, the National Crime Prevention Council (44) ("NCPC") reported that the percentage of children who recounted being physically bullied over the past year declined by seven percent from 2003 to 2008. (45) The NCPC believes the numbers are encouraging, but notes that cyberbullying has eclipsed physical bullying. Currently, more than forty-three percent of teens report being victimized by cyberbullying. (46) Michelle Boykins, Director of Communications for the NCPC, stated, "[w]e are worried about the pervasive growth of cyberbullying among our young people. The online assault of our kids through cyberbullying hurts every bit as much as a fist and can be equally damaging." (47) With the alarming number of teen suicides recently receiving national attention, cyberbullying can result in even deadlier consequences. (48)
1. The Differences Between Cyberbullying and Traditional Bullying
Cyberbullying shares three common characteristics with traditional bullying: (1) malicious and aggressive behavior; (2) an imbalance of power between two players; and (3) repetitive behavior over a period of time.49 Thus, the electronic medium seems to be the key difference between traditional bullying and its digital counterpart. (50) This difference makes cyberbullying more difficult to regulate and creates advantages for the cyberbully that do not exist for traditional bullies. (51)
Cyber-communications free cyberbullies from normative and social constraints on their behavior that exist in traditional bullying scenarios. Temporary email accounts, pseudonyms in chat rooms, instant messaging programs, and other Internet venues often obstruct a victim's ability to determine an aggressor's identity. (52) Similarly, many wireless phone providers allow privacy options to prevent a caller's phone number from displaying on a caller ID device. (53) Cloaked by this virtual anonymity, the cyberbully may be emboldened, posting harsher and more destructive material as a result of being physically removed from the situation. (54) Also, because tone, inflection, and facial expression are usually absent from online conversations, a cyberbully may not know or realize the harm being inflicted upon a victim. (55) In cyberspace, there is not always a swift or certain response that informs an adolescent of the inappropriateness of his or her harmful words or expressions. (56) Such feedback in face-to-face conversations can "send a message to bullies that 'enough is enough' or that their behavior is inappropriate." (57) By exploiting new technology to harm others, cyberbullies cause substantial damage to victims. (58)
Another unique problem that differentiates cyberbullying from traditional bullying is cyberbullying's ability to instantly send hurtful and humiliating content to thousands of people. (59) Degrading or cruel comments posted online or text messages sent from electronic devices can be viewed by people around the globe, including family, friends, and future employers; thus, embarrassing or harming the victim's reputation. (60) While spoken rumors and tangible photos may seem to spread around a school like wildfire, technology greatly expedites and magnifies the harm. (61)
A tragic example of cyberbullying's viral effects involves Hope Witsell, a thirteen-year-old from Ruskin, Florida. Her story emphasizes the seemingly inescapable and suffocating consequences of cyberbullying. (62) Hope experienced cyberbullying when a fellow student discovered a partially nude picture of her and sent it to students at six different schools in the area. (63) Hope's friend, Kyla Stich, told CNN that fellow students would "walk up to her and call her 'slut,' 'whore,' and ... 'skank' and just be really cruel to her." (64) The mass text not only caused students to verbally bully Hope, but students also wrote hurtful comments on a Myspace (65) page called the "Shields Middle School Burn Book" and started a "Hope Hater Page." (66) After months of humiliation and inescapable cyberbullying, as well as traditional bullying, Hope took her life by hanging herself in her bedroom. (67)
Additionally, cyberspace lacks supervision that is available in many traditional bullying settings. While chat hosts and social network providers sometimes observe chat dialog and posted comments in an effort to police conversations and evict offensive material, "personal messages sent between users are viewable only by the sender and the recipient," and they are usually outside regulatory reach. (68) Computers and laptops in adolescents' private bedrooms often prevent or deter parents from actively monitoring Internet use. This allows many teenagers to operate technologies without worry that a probing parent will discover their cyberbullying or victimization. (69) Further, there are typically no individuals to monitor offensive content in electronic mail or text messages sent via computer or cell phone. (70)
While some critics may argue that a victim could escape cyberbullying by turning off a cell phone or remaining offline, this is not the reality of today's students and society at large. (71) The majority of people nationwide are constantly connected to their cell phones or the Internet for social use. (72) Even educators are incorporating more technology into the schools' curriculum. (73) Being inseparable from technology and the Internet makes a person a "perpetual target for victimization," (74) and converts the "virtual reality" of cyberspace into a reality. In April, 2010, the Pew Research Center (75) found that cell phone texting has become the preferred channel of basic communication between teens and their peers: approximately seventy-five percent of twelve- to seventeen-year-olds now own cell phones (up from forty-five percent in 2004); fifty percent of teens send at least fifty text messages a day; and approximately thirty-three percent send more than 100 texts a day (amounting to more than 3,000 texts a month). (76) In a separate study, the Pew Center found that Internet use is nearly ubiquitous among teens and young adults today. (77) Ninety-three percent of teens between the ages of twelve to seventeen go online for extensive periods each day, as do ninety-three percent of young adults ages eighteen to twenty-nine. (78) According to the Cyberbullying Research Center, (79) adolescents have also completely embraced online social networking. As of the fall of 2009, seventy-three percent of teens between the ages of twelve and seventeen use such sites, an increase from fifty-eight percent in 2007. (80) Adolescents' constant connection contributes to the destructive nature of cyberbullying. (81)
2. The Mental and the Psychological Health Effects of Cyberbullying
Adolescence is a particularly important time for identity development. (82) During this period, a youth's social environment and social interactions with peers largely influence the identity formation process. (83) Thus, adolescents seek behaviors, situations, and social environments that help value themselves positively and avoid those that affect them negatively. (84) Overall, this affects a child's perceptions and acceptance of his or her changing self, and it plays a "critical role in directing his or her personal and even professional growth trajectory." (85)
The Journal of Adolescent Health (86) recently released a study that examined the association between depression and frequency of involvement in cyberbullying. (87) It concluded that experience with cyberbullying has a more negative effect on adolescent development (88) than traditional bullying, and victims may suffer long term sociological and psychological consequences. (89) Although cyberbullying does not involve personal contact between an offender and a victim, it can cause serious psychological harm, including depression, low self-esteem, anxiety, alienation, suicidal intentions, (90) concentration and behavioral problems, and even physical harm, such as stress-induced headaches and nausea. (91) Some victims even bring bullying-induced psychological, mental, and sociological issues into adulthood. (92) Researchers consistently report higher rates of depression and poor self-esteem in adults who experienced bullying as an adolescent. (93)
The most recent cyberbullying concern stems from several high-profile cases involving teenagers that took their own lives to escape harassment and mistreatment over the Internet. (94) Researchers have termed the phenomenon "cyberbullicide"--suicide indirectly or directly influenced by experiences with online aggression. (95) One of the most recent and highly publicized cases involved eighteen-year-old Tyler Clementi from Ridgewood, New Jersey. (96) While a freshman at Rutgers University in fall 2010, Tyler's roommate, Dharun Ravi, placed a video camera in his dorm room, without Tyler's knowledge. (97) Dharun twice recorded Tyler's private sexual encounters with another male student, and essentially "outed" him on the Internet by broadcasting the videos. (98) As a result of the videos, other students in the dorm began insulting and harassing Tyler. (99) Despite Tyler's repeated complaints to university administrators, no one addressed the incidents. (100) For a shy, studious, college freshman, the viral broadcast was too much. Shortly after his roommate posted the videos, Tyler jumped from the George Washington Bridge into the Hudson River in an apparent suicide. (101) While this incident represents one of the more extreme consequences of cyberbullying, its severity demands …