Should Cyberbullying Be a Crime?

April 27, 2012, 4:05 p.m.

By ELBERT CHU

Schools throughout New York are preparing to put a new curriculum in place that will teach students civility and tolerance, to comply with new legislation intended to cut down on bullying.

The 2010 legislation, called the Dignity for All Students Act, goes into effect July 1. It will require school districts to report instances of bullying to the state Education Department, and also mandates that schools adopt programs to counter bullying.

It is one of several laws passed throughout the nation to try to keep children from bullying each other. But one New York legislator thinks all those laws on the book do not do enough to combat cyberbullying, an issue of growing concern as more children communicate through the Internet and texting.

State Senator Jeffrey D. Klein, a Democrat who represents part of the Bronx and Westchester, introduced a bill in January to raise the punishment for some cases of cyberbullying to a felony with prison time if the threatening messages are sent by someone on school grounds.

With the help of state prosecutors, he crafted the bill to make cyberbullying eligible for prosecution as a hate crime. The Senate bill has 17 co-sponsors, and Mr. Klein said the bill was one of his top priorities for the spring session.

“The Constitution is very clear,” Mr. Klein said in a phone interview. “Free speech ends when you harm someone else. Words can kill.”

But critics argue that criminalizing cyberbullying is not the answer. They say education programs like those mandated by the Dignity Act are more likely to have an impact on young people.

Cy Vance Jr., the Manhattan district attorney, whose office would prosecute students under such a law, said: “We don’t think legislation is the best way to deal with cyber-bullying. When we take the opportunity to have kids talk to us and listen to us, we make more progress than the police.”

Justin Patchin, co-director of the national Cyberbullying Research Center and associate professor at the University of Wisconsin, said there were better alternatives to criminalizing cyberbullying. Schools should use loss of extracurricular activities, they could assign cyberbullying research projects, or they could mandate detention and family partnership programs to teach students about cyber harassment, he said.

“We know from decades of research that teens are not deterred by threat of formal punishment,” said Dr. Patchin, who has researched cyberbullying for more than 10 years. “They are more likely to be deterred by relationships they care about within the schools and what their friends think.”

Hanni Fakhoury, staff lawyer for the Electronic Freedom Foundation, said the Klein bill might be going too far. “If you hurt a 15-year-old’s feelings really badly, do you go to jail for that?” Mr. Fakhoury asked.

Mr. Klein defended the measure.

“When we create a law, it isn’t an automatic conviction,” Mr. Klein said. “It’s up to a prosecutor to make a good case.”

Johanna Miller, assistant advocacy director for the New York Civil Liberties Union, which helped to push the passage of the Dignity Act,said the Klein bill would short-circuit schools’ new programs by dragging children into the criminal system, instead of educating them.

The Dignity Act, Ms. Miller said, needs time to work. Most schools won’t implement new measures until next school year, she said.

“The Dignity Act is so promising,” Ms. Miller said. “There’s no limit on the method of bullying. It applies to any kind of communication that creates a hostile environment for students.”

In preparation for the act, a group of 34 student advocacy groups, including the bus drivers’ union and the principals’ union, worked to develop curriculum for schools.

In the aftermath of some high-profile cases of children bullying each other, many states have adopted legislation to try to counter bullying. Forty states have adopted measures to specifically address cyberbullying or electronic harassment, according to the Cyberbullying Research Center. The researchers define cyberbullying as persistent electronic harassment over the Internet or mobile phones.

New York is among nine states that do not have comprehensive laws that deal specifically with electronic harassment, but it has at least a dozen laws to address bullying, including two new ones that apply to youths. One is the Dignity Act. The other one is the Cyber-Crime Youth Rescue Act, which created both an educational and punishment alternative for some teenagers charged with sexting — sending inappropriate photo or word texts about sex — or cyberbullying.

Mr. Patchin of the Cyberbullying Research Center said that 11 states have made cyberbullying misdemeanors. New York’s proposed legislation, if it passes, would make the state only one of two, along with Missouri, that make some cyber-bullying cases felonies.

Elbert Chu is a student at the CUNY Graduate School of Journalism and a SchoolBook intern. Follow him on Twitter @elbertchu.