Cyberbullying from psychological and legal perspectives.

• Author: Rodkin, Philip C.

1. INTRODUCTION

   This symposium by the Missouri Law Review is a vital opportunity to find common ground between psychological and legal knowledge with respect to bullying and cyberbullying. Bullying, whether or not it is electronically mediated, is an emotionally charged area. To provide balance to the ongoing discussion, it is helpful to consider current findings, thoughts, and limitations of social science research in this area.

   In this Article, we begin Part II by a brief exploration of the history of bullying in social science research. Part III is a description of the ways that social scientists have attempted to define bullying, and by extension, cyberbullying. We pay particular attention to understanding the roles that the intentionality of the bully, the repetition of the problematic behavior, and the power asymmetry of the bully-victim dyad play in distinguishing bullying from other negative behavior. In Part IV, we track the relationship between bullies and their social worlds, noting that some bullies are marginalized within a broader peer culture while others are popular and influential. We suggest that children's peer cultures also influence cyberbullying. Part V of this Article applies a relational view to the problem of cyberbullying, taking into account the relationship between bully and victim, the importance of children's broader social networks, and how sex, gender, and sexual orientation create an additional layer of complexity to understanding relational issues among children. We conclude this section with a discussion of how teachers and school climates relate to bullying. In Part VI, our concluding thoughts center around how bullying and cyberbullying may be both similar and different from each other, and the implications this has for further research in the social sciences.

2. A BRIEF HISTORY OF BULLYING IN SOCIAL SCIENCE RESEARCH

   Recent interest in bullying has increased because bullying was dramatized powerfully in 2011 by a controversial documentary film called Bully. (1) Viewers who watch Bully, or any of the innumerable bullying clips posted on the internet, feel an irrepressible sense of outrage, an outrage that curiously may not be shared by those who witness or participate in a bullying episode as it unfolds. Our outrage springs from the violation of our democratic spirit that youth should be free to learn, in peace and safety, making the most of their talents and goals. As Olweus put it:

   Every individual should have the right to be spared oppression and repeated, intentional humiliation, in school as in society at large. No student should have to be afraid of going to school for fear of being harassed or degraded, and no parent should need to worry about such things happening to his or her child[.] (2) Tragedies, more than theories or findings, may have played the largest role in spurring interest in bullying. In 1982, bullying may have helped cause the suicides of three 10- to 14-year-old boys in northern Norway. (3) The Norwegian government responded with a campaign against bullying that included research and intervention led by Dan Olweus. (4) Olweus was trained as a trait psychologist (5) with presumably few illusions about the difficulty of reducing aggressive behavior, yet he pushed ahead in the 1980s to design and implement a pioneering program for anti-bullying intervention. (6) The effectiveness of the Norwegian campaign, both for the specific work of Olweus and for the larger efforts of the country's anti-bullying campaign, has proved remarkably far-sighted in identifying bullying and improving the welfare of children around the globe.

   While scientists in Norway started studying bullying in the 1980s, interest for the subject started comparatively later in the United States. School past twenty years, she has served as an expert witness in battered women's criminal cases, most often when victims have been charged with killing their abusive partners. shootings and suicides by children, too many to count but too few to study prospectively, largely account for the growing interest in bullying since the first decade of the 2000s. (7) Columbine High in 1999 is particularly memorable. Columbine exposed a narrative of marginalized youth lashing out indiscriminately against a tormenting popular peer culture. (8) Columbine and other similar shootings show that the heartbreaking youth suicides that motivated the Norwegian campaign are still present around the globe today.

3. DEFINITIONS OF BULLYING AND CYBERBULLYING

   Although research on bullying started in Norway in the 1980s, interest in the subject has been relatively recent in the United States. The place to begin is with the question of what is bullying, its definition, and detection. This inquiry is followed by the question of whether and how this definition needs to be changed to account for bullying behavior that occurs over electronic media. For the most part, definitions of cyberbullying adopt the prevailing definition of physical bullying, (9) but specify "cyberbullying" as an additional form of bullying along with the more common physical, verbal, and relational manifestations, which as we hope to show here may not be entirely appropriate. (10) Cyberbullying has the potential to differ from traditional bullying along multiple dimensions. (11) Cyberbullying is: (a) ubiquitous, in that one can be cyberbullied whenever an electronic device is on, 24/7; (12) (b) anonymous, in that the harasser may not have his or her actual identity revealed to the victim of harassment; (13) (c) extended in physical distance, as the cyberbully could conceivably be halfway across the globe from the victim of harassment; (14) (d) hard-to-detect, particularly by adults who may not be as technologically savvy as children and youth; (15) (e) of variable duration, because humiliating pictures or messages may stay on the Internet or be downloaded so that the cyberbullying event leaves an indelible trace; (16) and (f) in view of a potentially unknown, infinite audience, as the victim may never know who has or will witness the harassment that is experienced. (17)

   Olweus' 1993 book Bullying at School provides a definition of bullying that has largely been adopted nationwide:

   A student is being bullied or victimized when he or she is exposed, repeatedly and over time, to negative actions on the part of one or more other students.... In order to use the term bullying, there should be an imbalance in strength (an asymmetric power relationship): [t]he student who is exposed to the negative actions has difficulty defending him/herself and is somewhat helpless against the student or students who harass. (18) The Olweus definition thus has three components: intentionality, repetition, and power imbalance. The question is how electronic propagation of bullying behavior influences these components, making them more or less practical or realistic.

   1. Intentionality

      Intentionality is a common element across bullying and aggression. (19) The definition of "intent" is important because bullies are susceptible to harassment claims and these claims require that a specific type of intent be proven. All bullying is aggressive, but not all aggression is bullying. (20) How does electronic propagation of what otherwise might be seen as bullying affect attributions of intent? From the perspective of the school attempting to determine whether they have jurisdiction to intervene, cyberbullying may involve additional considerations of foreseeability. (21) Is it foreseeable that harassing, bullying messages will affect student learning at school, even if bullying originated off-campus? (22)

      Judgments of intentionality, which can be as elusive within child development research as in courts of law, (23) become even more difficult in the case of cyberbullying. Did the alleged cyberbully intend for his or her message to be distributed to a large audience, or was the harassing message forwarded on by a third party? Boyd and Marwick warn that: "young people who bully others rarely see themselves as perpetrators." (24) Even judgments of perceived harm to the victim may not be clear given that physical distance and the absence of face-to-face contact promotes ambiguity. (25) In the case of cyberbullying and children, there is a case to be made that a strict interpretation that only requires general intent rather than any specific intent may be too harsh or unfair in its application.

      The issue of what kind of intent to include in the scientific definition of cyberbullying parallels the distinction between specific versus general intent broadly located in criminal law and discussed in the context of domestic violence legislation, particularly harassment. (26) General intent refers to intentionality with respect to engaging in the behavior, while specific intent requires proof that the actor intended to achieve a particular result by engaging in the behavior. (27)

      A general intent standard is more appropriate in the cyberbullying context, as specific intent in the context of people in close relationships leaves open plausible arguments that behavior was committed for a purpose other than to cause distress or fear to the person. For example, an individual who harasses a victim by repeatedly calling, texting, leaving flowers, cards, and other gifts could claim that these actions were intended for the purpose of showing the victim how much he cares for her. A general intent standard in a civil legal action such as a court order of protection for a domestic violence victim requires the petitioner to show that the respondent intended to engage in the harassing behaviors. In Illinois, the standard for "harassment" for the purpose of obtaining a court order of protection does not require specific intent. (28) The statute does not focus on the perpetrator's intent at all, and instead requires that the harassing conduct be of the nature that would cause a "reasonable person...