Florida attorney Mark O’Mara is stepping onto center stage in the debate over how much parents should be held responsible for children’s cyberbullying. He plans to draft legislation to impose criminal liability on parents who show “willful blindness or gross negligence” to the kind of online torment allegedly inflicted on Rebecca Sedwick, for which two girls were recently arrested.
“If a child kills someone while operating a parent’s car, the parents can be held responsible. If a child kills someone while using a parent’s gun, the parent can be held responsible. If a child breaks the law using a computer or cellphone provided by the parent, how is that different?” wrote Mr. O’Mara, who served as defense attorney for George Zimmerman in this year's Trayvon Martin murder trial, in his "O’Mara Law Blog" on Thursday.
If such a law were to go forward, it would be the first in North America to hold parents criminally liable for cyberbullying, experts on law and bullying say.
The Canadian province of Nova Scotia has a new law that could be looked to as a model for protecting cyberbullying victims and holding parents accountable. The Cyber-Safety Act allows victims to sue cyberbullies, and parents can be held civilly liable for damages if the bully is a minor and they haven’t properly supervised his or her use of electronic media.
Despite people’s sense of urgency to do something about severe bullying, a criminal law would be a “knee-jerk reaction” and possibly a violation of the Constitution, says Parry Aftab, a New Jersey-based lawyer and a cyberbullying expert. “I understand how there may be consideration of laws to hold parents liable,” she says, especially if they knew about cyberbullying and encouraged it or allowed it to continue, but if such a law were to broadly hold parents accountable for young people’s online activity, “all of us could go to jail,” she says.
Liability for children’s use of cars and guns is different from liability for their communications, says Jesse Weins, a criminal justice professor at Dakota Wesleyan University in Mitchell, S.D. “Maybe we’re willing to say communication can be a deadly weapon, but we’re not sure of that,” he says, and it would be a controversial “broad stroke” to hold parents liable for all of their children’s electronic communications.
Even parents who are careful and think they are monitoring their children’s use of cellphones and social media can miss some of what their kids are doing, Ms. Aftab says. Instead of putting resources into pushing a law to make parents criminals, she says, “I’d rather have the time and money put into better education, teaching the kids where to report things, how to get help … and making sure [cyberbullies] go to mandated counseling.”
O’Mara acknowledged in his blog that “there are substantial obstacles in the way of passing such legislation,” but he said, “If parents won’t adopt that responsibility, we need to hold their feet to the fire and insist they share liability, especially when their children’s actions have life or death consequences.”
Polk County Sheriff Grady Judd this week arrested the 12- and 14-year-old girls and charged them with third-degree felony aggravated stalking as part of an investigation of the suicide death of Rebecca. He publicly took the parents to task after the 14-year-old allegedly posted on Facebook over the weekend that she bullied Rebecca but didn’t care that Rebecca died. He said he would like to charge the parents but so far couldn’t find relevant charges to bring against them.
In an interview with ABC News, the 14-year-old's parents said their daughter would never write something like that and that the girl's Facebook account had been hacked – a claim police don’t believe. The younger girl’s father told ABC News he wished he could have done more. “I feel horrible about the whole situation," he said. “It’s my fault, maybe that I don't know more about that kind of stuff. I wish I did.”
In an interview on CNN posted on O’Mara’s blog Friday, O’Mara acknowledged that for parents “there is going to be a learning curve” in taking responsibility for children’s online activities. But he said he decided to draft legislation because it appears that 12-year-old Rebecca, who was from Florida, was a victim of that learning curve, and that this case shows an alarming level of desensitization among kids about the fact that their actions can have irreversible consequences.
Parents have not yet been held civilly liable under the new law in Nova Scotia, but about a dozen cyberbullying cases are now being investigated by a new CyberScan unit, says Wayne MacKay, a law professor at Dalhousie University in Nova Scotia who chaired a bullying task force in 2011-12 for the province’s education department. The CyberScan unit has the authority to restrict the use of social media and even confiscate the cellphones of cyberbullies, Professor MacKay says.
A prosecutor has also requested that the probation of a 15-year-old Canadian girl convicted of bullying should include restricting her access to social media, and a ruling is pending, MacKay says.
Associated Press material was used in this report.