Bullying doesn’t look like ‘bullying’ anymore

If you could say anything you wanted to your Tormentor in Chief, what would you say? Here’s a start:

Dear Tormentor(s):

Your threats and repeated attempts to intimidate me are deafening. You must be physically and mentally exhausted from all the energy you’re putting into me. Like a parasite, it seems you need me to survive. You tear me down with outrageous rumors and drag me around on a metaphorical leash.

You get a kick out of defaming my name and crushing my credibility, shaming me into isolation. I let you sit on me like a beanbag. I let you carry on your reign of torture and stay silent thinking and hoping you’d chill out or get bored. I can’t explain that.

All of your tech toys make it easy for you to torment me 24/7 from anywhere. All the “tech taunts” hurt just as bad as or even worse than your punches to the gut. You’re killing me, literally and I think you want that. The pain you inflict is so unrelenting and evil that sometimes I don’t believe there’s any way out.

You and your “accomplices” are invincible and you won’t stop. But it stems from your own insecurity because you’ve probably been bullied too. Is that what’s driving you in your campaign to drive me mad? We both know this is much more than bullying. You’re in a criminal league of your own.

Bullying has become really broad and bullies don’t look like they used to. The  “old school” standard school yard bully; physically and mentally domineering, showing off their prowess as their constituents cheer them on, spewing out threats of great bodily injury and name calling that’s beneath degrading.

There are now several species of bullies. Types of bullies have expanded to work place bullies, cyber bullies (even the former “face” of the Obamacare website had to endure this), disability bullies, law school bullies, military bullies, political bullies and recently, a red hot spotlight on allegations of NFL bullying.

Miami Dolphins offensive tackle Jonathan Martin alleges that he was bullied by guard Richie Incognito. Although the two were reportedly  “friends,” Martin recounts threats of violence, physical attacks, and racial epithets left on his voicemail.

Martin checked into a hospital for emotional distress and left the team. Media reports hint that the alleged harassment went far beyond locker room culture and made a wrong turn towards harassment and relentless hazing. The floodgates opened up with criticism against Martin because he was “friends” with his alleged bully.

According to media reports, Martin thought that befriending Incognito would stop the abuse. Meanwhile, Ignonito denies any allegations of bullying and supports it with over a thousand text messages between the two, as evidence of a relationship. The story is still unfolding, as the NFL has appointed Ted Wells, a prominent criminal defense attorney, as an independent investigator.

So that we can understand bullying, what is it really?  Generally, bullying is defined as “unwanted, aggressive behavior among school aged children that involve a real or perceived power imbalance. The behavior is repeated, or has the potential to be repeated, over time . . .   California defines bullying under Education Code 48900.4: A pupil enrolled in any of grades 4 to 12, inclusive, may be suspended from school or recommended for expulsion if the superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has intentionally engaged in harassment, threats, or intimidation, directed against school district personnel or pupils, that is sufficiently severe or pervasive to have the actual and reasonably expected effect of materially disrupting classwork, creating substantial disorder, and invading the rights of either school personnel or pupils by creating an intimidating or hostile educational environment.” (Emphasis added).

In October, California extended its definition of bullying by electronic act to include conduct originating from an off-campus location. Assembly Bill 256 goes into effect on January 1, 2014.

If you really break down these definitions of bullying, certain words jump out: unwanted aggressive behavior, imbalance of power, intentionally engaged in harassment, threats, or intimidation, sufficiently severe or pervasive, creating an intimidating or hostile educational environment.  That’s conduct worthy of a civil action and maybe even a criminal one too.

Here’s what bullying really looks like:  severe or pervasive aggressive behavior towards another, with the intent to harass, harm, threaten, intimidate, or create a hostile environment.

Technology has made this behavior even more sinister and intrusive. Torment via texting and tweets that live in perpetuity have led many to suicide. Frankly, this isn’t just bullying. Assault, battery, harassment, intentional infliction of emotional distress just to name a few, come to mind in the civil context.

But what does bullying look like in a criminal context? Assault under modern law is a specific intent crime, which requires that the victim actually have mental apprehension of a battery. Specific intent means the “bully” has a specific target in mind and desires the intended result or has substantial certainty that it will occur. Mental apprehension means the target must have a reasonable fear of imminent harm. A reasonable person in the shoes of the target would feel the same way.

A criminal battery is the unlawful application of force upon another. The force does not have to be directly applied to the body. For example, putting poison in someone’s food. The level of intent can be intent to kill or injure, criminal negligence, or unlawful conduct (no intent to injure and conduct is not criminally negligent).

How is assault and battery in the criminal context applicable to bullying? From a criminal perspective, it is easy to see how the actions of a bully could potentially be deemed an assault and battery. Bullies have a target. Bullies want a particular result for that target. Bullies cause their targets to have mental apprehension of an impending battery.

That battery can be physical force or some other means of harm that isn’t physical. Physical or not, there’s still a fear of impending harm. We know that bullies love threatening and demeaning their victims behind the comfort of a keyboard. It’s easy, quick, and content can be massively disseminated. Bullies aren’t quitters. Think retweet.

Essentially, bullying really isn’t “bullying” anymore in the traditional sense. Bullying is in a criminal league of its own with long-term accountability, whether the actions are in physical form or not.

The story of 12- year -old Rebecca Sedgwick humanizes this concept. Rebecca was tormented and terrorized by a large group of girls who cyber bullied her for months on end.  Authorities report that on September 9, 2013, Rebecca climbed a tower at an abandoned concrete plant and jumped to her death.

There are those who will argue that cyber bullying alone did not cause her death. However, bullying in any form, physical or cyber looks an awful lot like assault and battery in a criminal context. It’s certainly worth asking, when it comes to bullying, do we have tunnel vision?