Restorative justice is best

Bullying is bad; we can all agree on that.

For more than a decade, we’ve railed against it on this page. We’ve detailed, in our news stories, the detrimental effect bullying can have on an individual and we’ve printed surveys from local schools that show the large number of kids who feel bullied.

Bullying is not just a problem for children but for adults as well.

We must be clear about what bullying is, though, if we don’t want the term to be used so broadly that it becomes meaningless. If everyone cries “Bully!” much like the boy in the fable who cried “Wolf!” then the true victims of bullying won’t get the attention and help they need.

Bullying involves a persistent and targeted attack on a particular individual. We wrote, for example, the heartbreaking story of Ryan Halligan, whose father spoke to Guilderland students in 2011. He told of how his son — “a sweet, gentle, and lanky 13-year-old” —was taunted online for months and consistently bullied by students in his school before he killed himself. His father has since devoted his life to making others aware of such behavior.

John Halligan discovered, after his son’s death, by logging on to his instant-messaging account, that a “popular” girl had feigned affection for Ryan “to get him to say a lot of personal and embarrassing stuff,” copying and pasting their private exchanges into ones with her friends. “They all had a good laugh at Ryan’s expense,” said John Halligan, noting it is very different to be “bullied and humiliated in front of a few kids” than to have the humiliation witnessed by a large, online adolescent audience.

But every unkind act and every rude statement is not necessarily bullying.

We in no way condone the behavior of four Guilderland High School juniors, all males, who posted an offensive rap they had made, naming sophomores, mostly females, at their school. We hesitated to print even excerpts of the rap because the language and assertions were so offensive.

The “Guilderland Sophomore Rap” has lyrics like, “Five sophomore girls together sounds like a slutfest. Only takes a minute of drinkin’ to get ’em undressed.”

In the end, though, we thought people wouldn’t be able to understand what had created such a media stir unless they knew what some of the sentiments were.

In addition to whatever punishment the school district metes out to the already suspended students, the four high school juniors were all arrested under Albany County’s 2010 law, which made cyberbullying a crime.

Each could face up to a year in jail and up to $1,000 in fines.

In announcing the arrests, Captain Curtis Cox with the Guilderland Police said, “The message here is bullying will not be tolerated.” Cox said that the rap — posted on YouTube on Nov. 11 and removed the next day by one of the students who posted it — caused “at least two” of the “20 or so” students named to complain. In order to make the arrests, Cox said, “We had to have a victim that felt bullied.”

The county’s law says “Cyber-bullying shall mean engaging in a course of conduct or repeatedly committing acts of abusive behavior over a period of time….”

If this tasteless five-minute rap, posted for two days, was a one-time affair and not part of an ongoing campaign to target particular individuals, we believe it is not bullying.

The county’s cyberbullying law is being challenged in a case that will be heard next year by the state’s top court.  In that case, not dissimilar to the one scheduled to be heard today in Guilderland Town Court, Marquan W. Mackey-Meggs, a student at Cohoes High School, had posted pictures of students at his school on a Facebook webpage entitled “Cohoes Flame Page.” Below the pictures, court papers said, he wrote descriptive comments “which were largely derogatory and sexual in nature.” (The Guilderland post had just a single still shot of the Guilderland High School sign, no student pictures like the Cohoes site, but it did name students in the rap and had descriptive comments that were derogatory and sexual in nature; in neither instance were electronic messages sent to the targeted students.)

The Cohoes City Court judge dismissed eight harassment counts against Mackey-Meggs but denied his motion to declare the cyberbullying law unconstitutional. The case was then appealed to the Albany County Court where the judge this past May confirmed the conviction.

Mackey-Meggs contended that, although Albany County “may be able to criminalize fighting words, incitement, obscenity, and true threats, it cannot go further.” He argued that the cyberbullying law goes further by regulating communication that is private, personal, false or sexual, which, he contends, would include “the vast majority of postings on common social media sites.”

Albany County, however, maintains that “the law sets forth a mental element, requiring that a defendant’s actions be made ‘with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate or otherwise inflict significant emotional harm on another person.’”

Was that the intent of the Guilderland High School juniors? There is an “I love you” sprinkled in amid the rap-aping obscenities. Even Captain Cox said perhaps “these kids thought it was a big joke.”

Certainly, it wasn’t a funny joke. But neither do we believe it was a crime.

Because of their ages — two of the arrested juniors are 16 and two are 17 — the suspects are adults under New York State law. The vast majority of states set that age at 18, and for good reason — young minds are still evolving.

The Guilderland school superintendent told us how the district has worked for years on teaching respect. “We pride ourselves and are working very hard — it wasn’t hard enough,” she said. We’ve chronicled that hard work and some of its far-reaching effects. We don’t believe the school is responsible for this misstep on the part of four students.

Captain Cox urged parents to be more vigilant. We don’t believe the parents of these teenagers are responsible either. The responsibility falls squarely on them.

But, if Guilderland is trying to set an example, we urge the town judge hearing this case to set a good one. Sending the four teens to jail wouldn’t do anyone any good — not the perpetrators, not the victims, not society at large. Neither do we see the value in a big fine.

If the judge believes bullying has taken place — doubtful if this was a one-time incident — and if the judge believes there was intent to harm — rather than a misguided attempt at humor or creativity — then we urge the judge to take advantage of the county’s new restorative justice program for juveniles to pay restitution for their crimes.

What if the young men were required to work in a shelter for battered women? Wouldn’t that give them a clear idea of what can happen when macho sexist stances are allowed to run rampant? Women should not be regarded as quarry to pursue, undress, and conquer. Women are human beings, not objects, and deserve respect. That would be a lesson worth learning.

Certainly, conviction or no conviction, the four who posted the rap should make meaningful apologies to those they slurred and make amends accordingly.

The best justice is restorative.

Melissa Hale-Spencer

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