The Age of Bullying and Criminal Responsibility

by Betsy Krebs

Recently a ninth grader on the track team at Bronx High School of Science, one of the top schools in the country, accused three teammates of picking on him repeatedly in the locker room- touching, hitting, and threatening to rape him.

The boy’s report was taken seriously, as it should be.  The three 11th graders (16- and 17-year-olds) as well as the coaches, who knew or should have known about what was happening, were suspended from school. The principal reiterated the school’s commitment to fighting bullying, and students and parents engaged in a discussion.

You wonder: is the 9th grader okay? What kind of help does he need to recover? Can we help these boys who acted stupidly not completely derail their plans for college and the future? What can be done?

Of all the solutions you might consider, arresting the boys and prosecuting them in adult criminal court for hazing would probably not be your first choice.  But that’s what happened, because in New York the law says that once you turn 16, if you’re accused of a crime, you go through the adult criminal justice system.

In 48 states, the 16-year-olds’ cases would be in juvenile or family court, and in most states, so would the case of the 17-year-old.

Here in New York, there is no choice other than to prosecute them in adult criminal court. The judge can make the decision to change their status to ‘youthful offender’ and seal their records, but the fact is that each year, thousands of 16- and 17- year-olds are tried as adults, and hundreds are currently incarcerated in adult correctional facilities. Not surprisingly, most are minorities from poor families.

New York Chief Judge Jonathan Lippman is calling for a less punitive approach that would focus on ways to rehabilitate, rather than incarcerate, young people.Lippman proposes that the state transfer jurisdiction for 16- and 17-year-olds accused of less serious crimes to family courts, which have more social services, while continuing to prosecute the most violent juveniles as adults.

How this will be handled in the financially stretched family courts is another matter, but it does reflect growing consensus that most teenagers are not appropriately handled in the adult court system.

This spring, there is a bill pending in the New York state legislature to raise the age of adult criminal responsibility from 16 to 18 so that youth who are charged with a crime may be treated in a more age-appropriate manner.

The Raise the Age Campaign in New York, led by Judge Michael Corriero’s New York Center for Juvenile Justice, has been gaining community support to “secure justice for children by promoting a model of justice for minors that treats children as children, and responds to their misconduct with strategies designed to improve their chances of becoming constructive members of society.”

Back to the Bronx Science track team stars.We don’t know if they bullied or hazed their teammates.  Some say they clearly did, and others say it was just obnoxious boy behavior, aggressive teasing. It seems that schools and others who work and live with kids are confused about bullying and what to do about it , and with good reason, because every state other than Montana has anti-bullying laws with differing definitions and standards).

Journalist Emily Bazelon’s new book – Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy –  is a powerful new resource for those seeking to get a handle on this. She summarized her nuanced view on what is and what is not bullying in the New York Times last week:

“…. ‘bullying’ isn’t the same as garden-variety teasing or a two-way conflict. The word is being overused — expanding, accordionlike, to encompass both appalling violence or harassment and a few mean words.

All the misdiagnosis of bullying helps make the real but limited problem seem impossible to solve. If every act of aggression counts as bullying, how can we stop it? Down this road lies the old assumption that bullying is a rite of childhood passage. But that’s wrong.

Bullying is a particular form of harmful aggression, linked to real psychological damage, both short and long term.”

Bazelon says where bullying is taking place, “there are concrete strategies that can succeed in addressing it — and they all begin with shifting the social norm so that bullying moves from being shrugged off to being treated as unacceptable.”

In her book, she discusses some of these strategies, which are mostly community based, and for a minority of kids, intensive and therapeutic.

Perhaps in some situations, teens’ behavior is so dangerous that court intervention is needed, but in most cases there are or should be ways to respond to accusations of bullying outside the court system. And if it does become necessary to involve the police, there must be alternatives to prosecuting children in adult criminal court.

If you think that 16- and 17-year-olds should be in criminal court to straighten them out or be taught a lesson, please check out this video by the Brave New Foundation.

Betsy Krebs is a lawyer, author, and the co-founder of Youth Advocacy Center, which tapped into the potential of young people in foster care to advocate for themselves and drew attention to their needs and strengths for almost 20 years, before closing in 2012.

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