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Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call (617) 206-1942.

Posted On: April 2, 2010

A Boston Criminal Defense Lawyer’s Take On Anti-Bullying Laws

This week, the Boston Criminal Lawyer Blog has focused on what so many in Massachusetts and beyond have been talking about. The topic is “bullying”. It is a somewhat vague term that schools and summer camps have endured since we decided to group kids together in one place.

For some reason, though, we do not care about summer camps for now, so we continue to simply focus on schools because that was the setting of the recent suicide.

Some other states are actually looking at us in wonder. They are wondering why it has taken us so long to “catch up”. You see, some other states already have laws banning bullying. By the way, some other states still have laws on the books banning “copulation” too.

I kind of like to look at Massachusetts as a Commonwealth that does not need to mindlessly follow the lead of other jurisdictions though. After all, we were the first state to legalize gay marriage. We have recently realized that having a small amount of marijuana for personal use is not necessarily a threat to humanity (although for someone to have given it to someone for their personal use is…but that is a different topic).

The point is that we, as an independent state, can think for ourselves. What I am trying to urge with this is topic is that we do actually think. Not simply act by knee-jerk and not make decisions based on publicity or political goals.

Nine kids are already indicted. Unless there is a dismissal, they are most likely already done. Once they are arraigned, their record is marked and will be for many years. I’ve kicked that dead pony enough this week. Let’s just make one last point on it before we move on to the legislature’s attempts to curtail bullying.

The daring da from South Hadley was already able to charge the youths, indictment and all. This means that there were crimes on the books to prosecute them with…all the way to felony status. Further, as reported earlier this week, other prosecutors have charged other students in similar cases, although somehow able to do so in some kind of perspective and without press conferences.

Hazing (MGL c.269, s.17-19), Criminal Harassment (MGL c.265, s.43A), Stalking (MGL c.265 s.43) and Identity Fraud (MGL c.266, s.37E) are already crimes in the Commonwealth, as are Violation of Constitutional Rights (MGL c.12, s.11H) and a plethora of Assault Crimes(MGL c.265).

Nevertheless, the good folks on Beacon Hill have felt that they had to react to the excitement surrounding bullying. I would imagine that when the daring da announced her indictments, the gauntlet was thrown that they had better step up the process so that they would not be upstaged come election time.

Bullying is an easy target –nobody, including me, likes it. It also gives opportunity for emotional satisfaction to make a stand against.

Take, for example, the heartfelt plea Senator Mark C. Montigny made as he read a letter he received from a girl in Southeastern Massachusetts, detailing the cruel words other students hurled at her and the daily kicks she was subjected to. Montigny said the most damaging insult that he could read aloud from the letter in the chamber without being ruled inappropriate was “dummy.’’ Others were far harsher. “Shockingly, this girl is 9 years old,’’ he said.

I imagine the girl was not black, Jewish, Asian or any other kind of ethnic group. You should hear the home-grown epithets one often hears repeated in those cases.

The bill, which now heads to the House, was one of two approved by the Senate that is aimed at fostering a “safer and healthier learning environment” for the state’s schoolchildren.

So…what will the proposed legislation do? Many people assume that it will create a new crime…such as we have done to enhance old crimes in the past. For example, Assault for purposes of bigotry is now a “Hate Crime”. Violence between people in a relationship is a “Domestic Violence” matter which carries its own brand of justice.

Interestingly, this legislation does not really do that. It does not simply target the kids who are doing the actual bullying, as did the daring da. Somehow, it seems to target those who are responsible at school and elsewhere.

It targets those who we, through hiring them, are supposed to be acting in a responsible manner in these matters already, all concern of publicity and lawsuits aside. They are already supposed to care enough to do the “right thing” and, dare I suggest, be role models for our youth.

Apparently, for a variety of reasons, they have failed to do so.

The bill would require school districts to adopt a policy to prevent and address bullying at school and on the Internet, including a requirement to notify parents of victims and perpetrators. It also empowers school administrators to discipline students if they bully peers on the Internet outside school, in cases where it affects a victim while at school, and to refer any case that involves criminal actions (already in existence) to law enforcement officials.

“We believe training of education staff is essential to the success of this bill,’’ said Arline Isaacson, co chairwoman of the Massachusetts Gay & Lesbian Political Caucus. “A lot of good and well-intentioned educators want to help and do the right thing, but they don’t know what to do. They want and need training.’’

Some advocates have been pushing for heavier legislation. Some want all bullying cases to be reported to the local district attorney.

Robert Trestan of the Anti-Defamation League New England, which has been pushing for passage of a bullying bill for years, said that reporting bullying cases to the district attorney was “overkill,’’ arguing that it is sufficient for school administrators to determine which cases should be referred to law enforcement.

“The goal is to educate, not to take 7-year-old kids out of school in handcuffs,’’ Trestan said.

Now, there’s a refreshing thought. Education instead of incarceration or prevention of entry to higher education. Woops, there I go kicking that pony again.

State Senator Jennifer L. Flanagan appeared before the Nashoba District School Committee to discuss the legislation.

“The intent of the anti-bullying legislation coming through is that we want everyone to learn how to recognize bullying,” Flanagan said. “Not just the teachers, but school nurses, bus drivers, custodians and even parents should be able to recognize the signs.”

“A lot of bullying is not only happening in schools but online,” Flanagan said. “A student can be bullied by someone through the use of e-mails or text messages. The kid being bullied gets these text messages and is afraid to come to school.”

School Committee Chairman Brian Burke said he was not sure how the district would pay for bullying awareness programs. He explained, “We are laboring already under a tremendous burden of unfunded mandates and if the legislature is going to require us to have these programs this is yet another unfunded mandate.”

Good point. That is how many such initiatives fail. However, Flanagan said the bill before the House specified that there should be no cost to any such programs.

Will I seem too much like Bill Clinton if I ask what “should” means?

When someone pointed out issues involving parents of alleged bullies, Flanagan admitted that sometimes parents aren’t paying attention to the problem. One might add that such parents sometimes are the problem.

“Hopefully the bullying bill may bring that part of the conversation more into focus,” Flanagan said. “Studies have shown that if you have aggressive behavior now as a child it could become progressively worse as you get older. The [appropriate] behavior needs to be re-learned. The parent has to become more of a partner in the equation. It has to be made clear that they are a part of it.”

Now, one may argue that such legislation should not be necessary. Indeed, it shouldn’t be. However, woefully underfunded academic institutions, who’s leaders are too often more concerned about bad publicity and lawsuits than exercising their discretion in a positive and meaningful way may need this directive.

There are problems, though.

First of all, can this really be funded? Second, is it specific enough or will it be simply another “squishy” bill that will be interpreted in multiple ways by multiple people depending on what they want it to mean.

Another problem is that the people hired in the institutions were presumably hired because of their expertise in dealing with kids. In other words, their discretion. What we are trying to do is to take away their discretion and force them to respond in a dogmatic fashion which is hardly going to cure the problem. Every case is different.

Yet another issue is one which you just knew that, as a lawyer, I was going to bring up. It is that dratted United States Constitution again and free speech.

Yes, there are limits on free speech when it endangers people. However, saying nasty things about them is absolutely allowed…it is what it was made for. Can we really simply call it “bullying:” and take away that right based on the fact that the perceived victims, who could always turn away from that page, might actually look at it?

Well, I guess that is where parents come in. For kids, I would absolutely say “yes”. But can you force parents to parent? And is this a slippery slope? Will the next indictment passed down from the daring da be against me for my opinions on her performance in this matter?

Well, these questions will have to wait for another day. Assuming I am not incarcerated over the weekend for name-calling, I will move on to a new topic on Monday.

In the meantime, have a great, safe and law-abiding Good Friday and weekend!

For the full stories upon which today’s blog is based, please see http://www.lawlib.state.ma.us/subject/about/bullying.html , http://www.boston.com/news/education/k_12/articles/2010/03/12/senate_oks_bill_to_curtail_bullying?mode=PF and
http://www.wickedlocal.com/bolton/news/x1176897178/New-bill-calls-for-bullying-prevention-plans