As a victim of bullying my proverb was always “Sticks and stones will break my bones, but words will never hurt me.” Apparently in the Internet age there are no ‘sticks and stones’ or ‘words’ in the traditional sense, but rather posts. Today’s children live in a cyber world that is unregulated in which they promulgate their own rules. They live unregulated largely because adults are absent. Parents are not a part of this cyber world either because they are not tech-savvy, children fool them with fake social media accounts, they are not interested, or they do not want to get involved with child’s play. Hence we end up with a Lord of the Flies scenario except there are no killings. Nevertheless, any victim of bullying in my age group would substitute physical, in-your-face bullying for cyber-bullying any day. Today, however, you have to log-on and visit particular sites in order to find out who’s bullying you. Now prosecutors are holding a 12 and 14 year-old responsible for the suicide of Rebecca Sedwick.
Prosecutors are charging these two young girls with aggravated stalking. Prosecutors allege it was the 14-year-old’s relentless cyber bullying that drove Sedwick to jump from the top of a tower at an abandoned concrete plant on September 9, 2013. Prosecutors do not have concrete evidence that this was the reason for her jump, but whether or not this is true, this fact is not an element of aggravated stalking but may circumstantially play a part in proving substantial emotional distress. According to CBS News, Sheriff Judd charged the girls with [aggravated] stalking because what they did to Sedwick went beyond bullying into harassment and intimidation. Isn’t that what bullying is?
At a news conference Sheriff Judd reiterated some of the messages posted to Rebecca Sedwick without naming the authors of the first two: [you should die, go kill urself]; “drink bleach and die;” and lastly the message that triggered the 14-year-old’s arrest, “Yes IK I bullied REBECCA nd she killed her self but IDGAF.” Sheriff Judd also stated at one point in time Rebecca was bumped in the hallway, but she could not identify who the perpetrator was although both of the accused were in the area. The bumping incident resulted with the school changing Rebecca’s schedule so that she would not have to encounter her schoolyard bullies. Eventually Rebecca’s mother enrolled her in another school but still allowed her to use social networking sites. These events occurred over an undisclosed period of time but according to the Sheriff was not more than 6 months apart. But the question remains does the State have enough evidence to prosecute these two young girls with aggravated stalking?
Section 784.048(3) provides in pertinent part:
(3) Any person who willfully, maliciously, and repeatedly follows, harasses or cyberstalks another person and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury of the person or the person’s child, sibling, spouse, parent, or dependent commits the offense of aggravated stalking, a felony of the third degree …
There are a number of problems with the prosecution’s case. First and foremost, the victim is dead. This puts the prosecutor’s aggravated stalking charge into question because the purpose of this statute is to “protect women from being harassed by ex-husbands or former boyfriends, by ensuring that victims did not have to be injured or threatened with death before stopping a stalker’s harassment.” The statute was designed to deal with the real threat of domestic violence, death, or great bodily harm that occurs between individuals where one individual, usually a female, is subjected to conduct that causes substantial emotional distress and serves no legitimate purpose. There is no victim to protect in this case and, evidentially speaking, there can be no testimony by the victim to substantiate the effect the accused had on her, if any. One cannot stalk or harass a dead person. Furthermore this case would be unique because to my knowledge there has not been a case where the victim is dead and an aggravated stalking charge did not accompany some sort of criminal homicide charge. Nevertheless, prosecutors may argue that charging these two young girls will serve the preventative purpose in the theory of punishment – an example and warning to would-be bulliers.
Secondly, even if the prosecution could bring these set of facts within the purview the aggravated stalking statute there are significant issues with establishing the “credible threat” element in aggravated stalking. The prosecution must meet this burden by showing beyond a reasonable doubt that these two young girls intended to make credible threats to the victim. The statute defines a credible threat as “a threat made with the intent to cause the person who is a target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.” Here these young girls are accused of posting things to the effect of telling Rebecca that she should kill herself, drink bleach, and that they do not care about her suicide. Nothing in these postings reasonably rises to the level of causing Rebecca to fear for her safety neither are these posts a threat to do bodily harm nor threats against Rebecca’s life.
Some instances where the court found that the facts presented did not amount to “credible threats” are: mere shouting and obscene hand gestures, without an overt act that places the victim in fear (Perez v. Siegel, (2003)); threatening to kill and “ ‘F’ him (victim) up,” without overt acts indicating an ability to carry out the threats or justifying a belief in the [victim] that violence was imminent (Russell v. Doughty, (2010)); and making hand gesture imitating a gun and saying “bang you’re dead, I’m going to kill you.” (West’s F.S.A. § 784.046). These instances were not enough to constitute a credible threat.
Clearly the statute was designed to deal with activity that caused the victims to be afraid that the perpetrator would kill or physically harm them or a loved one (whether that activity was intended to do so or not), not embarrass, or make them ashamed, or make them feel that they prefer to take their own lives than face life. The defendants’ statements rather encourage Rebecca to do harm to herself. Again, there is no evidence that the defendants’ actions caused the victim to fear that they would kill her or cause her bodily injury. Thus, unless these young girls knew that Rebecca was mentally vulnerable and susceptible to suggestions in that she was likely to harm herself, it will be very difficult – a stretch – for the prosecution to establish the “credible threat” element in aggravated stalking.
Are these young girls completely innocent? No! This kind of conduct is deplorable, despicable and disgusting — but may not be criminal. Essentially these girls teased Rebecca but I cannot go far enough, at this point in time, to say that they caused Rebecca’s death. According to Sheriff Judd, Rebecca ran away from home before and her home situation was not that great either. These young girls took Rebecca’s peace. She did not have peace at home, school or in the cyber world. Maybe the prosecution could lessen the charges to misdemeanor stalking and point to T.B. v. State in which the court found sufficient evidence of stalking where teens came to the place of work of T.B., taunted the victim three times with the words “faggot” and “queer” causing the victim to be embarrassed and substantially emotionally upset. Nevertheless the Court did state that the victim was at his place of employment — a place where he had to be and could not avoid. Therefore, in this case, even if the prosecution charged the defendants with misdemeanor stalking, they may have a problem showing that the victim, Rebecca, could not avoid or had no option but to log on to social networking sites.
It is unfortunate Rebecca Sedwick took her own life as a result of alleged cyber-bullying? Of course it is unfortunate that Rebecca Sedwick committed suicide. Make no mistake when any person, far more a minor takes their own life it is considered a failure on the part of our society and the parents. Prosecutors nonetheless allege that her peers are to blame for her suicide. Thus in order to convict these two young girls prosecutors would have to prove beyond a reasonable doubt that they willfully, maliciously, and repeatedly followed, harassed or cyberstalked Rebecca and made credible threats with the intent to place her in reasonable fear of death or bodily harm, to be guilty of aggravated stalking. This may be an uphill battle and another opportunity for defense attorneys to bask in the sun.
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