The Cyber-Samaritans: Exploring Criminal Liability for the "Innocent" Bystanders of Cyberbullying

Article excerpt

ABSTRACT-In recent years, the media have consistently documented the stories of teens who committed suicide or otherwise suffered severe physical and psychological harm following periods of vitriolic cyberbullying. While legislators and scholars have proposed several solutions to combat cyberbullying, none have drawn on the work of social psychologists to address the role that witnesses play in escalating bullying. This Note proposes that the witnesses of cyberbullying be held liable under a "Bad Samaritan" law for failing to report the most severe forms of bullying where the witness reasonably believes the victim will suffer physical harm. Drawing on the justifications for classic Samaritan laws in both civil and common law jurisdictions, the Note suggests that a well-publicized duty to report cyberbullying would undermine teens' general reluctance to report such abuse and provide the means for adults to intervene to assist victims. Cyberbullying harms countless children, both physically and emotionally; a complete response to the problem must hold responsible not only the bully, but also the bystanders who, through their silence, contribute to the bully's power and the victim's isolation.

INTRODUCTION

Danny Alexander,1 a fifteen-year-old student at a private school in Los Angeles, created and maintained a website to promote his budding acting and singing career.2 A fellow student used the site's comment function to post the following message:

I want to rip out your fucking heart and feed it to you. . . . I've . . . wanted to kill you. If I ever see you I'm . . . going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell.3

At least five other students posted similar threatening and derogatory messages on his website, including "Faggot, I'm going to kill you" and "[You need] a quick and painless death."4 The death threats and abuse only came to the attention of authorities when Alexander's father read the comments and contacted the school and law enforcement.5

In Benson, North Carolina, Justin Ray Jackson and Joshua Aaron Temple created a Facebook page specifically to threaten a fifteen-year-old classmate.6 Jackson threatened to run over the student with his pickup truck, while Temple wrote "that he was bringing a gun to school to hunt [the student]."7 Investigators only found the Facebook page after the victim's father reported the bullying.8

For these two teens and countless others across the nation, the Internet is a threatening place where tormenters attack with impunity and friends stand by in silence. Both of these students were fortunate to have parents discover the threats and report them to the proper authorities, but how much sooner might the bullying have ended if witnesses-often the classmates and friends of these victims-had reported the threats and abuse?

The bully has been a figure in adolescent life for centuries, but recent research has drawn attention to a previously ignored participant in the bullying relationship: the witness-bystander. Scholars now recognize that bullying is not a dyadic, or two-person, relationship between the bully and the victim, but rather a communal problem in which the witnesses and bystanders to bullying behavior play a role in escalating the abuse. Even while researchers redevelop how they understand bullying relationships, the nature of bullying has changed as it moves from the playground to cyberspace.

Although cyberbullying is a relatively new phenomenon, the legal community has rushed to address the problem.9 After tragic stories of teen suicide following online taunts, threats, and abuse, communities demanded a response. Legislators and policymakers heeded the call by passing civil and criminal sanctions aimed at a variety of bullying behaviors and imposing liability on bullies and educators alike. Although critiquing the various solutions that have been proposed is beyond the scope of this Note, each has failed to specifically consider the role witnesses and bystanders play in the bullying relationship. …