Abstract
The unprecedented exposure of today’s youth to the Internet and technology carries many benefits but also risks such as cyberbullying and online predation. The incidences of both cyberbullying and adolescent suicide are rising in the United States, with recent Centers for Disease Control and Prevention data showing that 14.9 percent of adolescents have been cyberbullied and 13.6 percent of adolescents have made a serious suicide attempt. Cyberbullying has been associated with suicide of a victim in several recent cases, a phenomenon that has been newly termed cyberbullicide. Parents and youth are frequently unaware of the risks and potential criminal liability associated with cyberbullying. Legislation that protects against online bullying has developed from antibullying laws, and as an expansion of the requirement that schools prohibit any bullying at school or via technology that interferes with learning. Cyberbullying laws exist in certain states, but as there are no federal laws that address bullying or cyberbullying, cyberbullying is prosecuted federally via statutes governing cyberstalking. After examining the epidemiology of adolescent suicidality, cyberbullying, and cyberbullicide, this article reviews recent legislation governing cyberbullying. Finally, this article illustrates the role of the forensic psychiatrist in civil and criminal cases involving suspected cyberbullicide.
Today's youth are exposed to the Internet through the ubiquitous presence of smartphones, social networking, and messaging, carrying a simultaneous devaluation of face-to-face and telephone communication. This rapid expansion of online socialization has introduced new complications to old problems, including the progression of bullying into cyberbullying and cyberbullicide. Cyberbullicide is a new term for a subclass of suicides that was coined by prominent cyberbullying researchers Sameer Hinduja and Justin Patchin in the 2000s. The term describes suicides that are directly or indirectly influenced by online aggression or cyberbullying.1,2
Bullying is defined as “any unwanted aggressive behavior(s) by another youth or group of youths who are not siblings or current dating partners that involves an observed or perceived power imbalance and is repeated multiple times or is likely to be repeated”3 as defined by the Centers for Disease Control and Prevention (CDC). Thus, cyberbullying is bullying that occurs online or through technology. Cyberbullying may take many forms, including embarrassing or hurtful comments or photographs being posted online or sent to the victim, rumors being spread about the victim online, sexual comments or gestures being posted, threats of harm being sent to the victim through messages, someone pretending to be the victim online, or offensive videos or webpages being posted about the victim.4 Frequently, individuals who engage in cyberbullying are also victimized, a trend that is also observed with schoolyard bullying.1 There is a growing literature regarding cyberbullying, but relatively little specifically about cyberbullying that is associated with suicide.
The evolving nature of adolescent peer aggression in the context of widespread online access has raised awareness of cases of suicide in which bullying and cyberbullying are reportedly associated with the suicide, making this an area requiring further study. In contrast to schoolyard bullying, cyberbullying grants potential anonymity to the aggressor, which can correspond to a diminished sense of prosocial remorse and inability of the victim to easily avoid attacks without fully detaching from online media. This anonymity increases the potential level of danger to a minor. Criminal or civil legal proceedings may occur when cyberbullying is associated with suicide. Forensic psychiatrists may be asked to opine on elements of culpability, including evaluation of the cyberbully, responsibility of third parties in not preventing the bullying, and psychological autopsy of the decedent. Such forensic evaluations generally follow a similar framework as other civil and criminal cases involving suicide or school bullying, with some specific considerations. This article outlines the phenomenon of cyberbullying associated with suicide, relevant legal statutes, and important considerations for the forensic psychiatrist who may be consulted in criminal or civil cases of cyberbullying resulting in suicide.
Suicide and Cyberbullying Cases
In the absence of epidemiological studies, the data regarding cyberbullying and suicide derive predominantly from accounts of news stories. In 2010, the roommate of 18-year-old college student Tyler Clementi secretly live-streamed Mr. Clementi engaging in physical intimacy with another male alone in their dorm room and publicized it via messaging and Twitter. Two days later, Mr. Clementi took his life.5 In 2013, 12-year-old Rebecca Sedwick was extensively bullied and cyberbullied via multiple online platforms by girls from school, including her former best friends. She switched schools, but the cyberbullying continued, and after a year and a half, Ms. Sedwick took her life.6 In 2017, 10-year-old Ashawnty Davis confronted a girl who had been allegedly bullying her, and someone posted a video of the fight on an app called Musical.ly, prompting more bullying. Two weeks later, Ms. Davis took her life.7 In 2019, 16-year-old Channing Smith was outed as gay after explicit text messages he had exchanged with a male classmate were posted on social media; a few hours later, Mr. Smith took his life.8
The media has attributed certain cases of suicide to cyberbullying, but correlation does not imply causation. The cause of any suicide is often multifactorial, and attributing a given suicide to cyberbullying alone would be an oversimplification and not fully accurate.
Epidemiology
Suicide is the second-leading cause of death in individuals 10 to 34 years old, occurring at a rate of 10.2 per 100,000 individuals, and its incidence in this age group has risen 56 percent between 2006 and 2016.1,9 According to 2019 CDC Youth Risk Behavior Surveillance (YRBS) data, 18.8 percent of high school students seriously considered attempting suicide, 15.7 percent of high school students made a suicide plan, 8.9 percent of high school students attempted suicide, and 2.5 percent of high school students were injured in a suicide attempt.9 Suicide affects not only the decedent but also family members, and has a ripple effect through the community. Importantly, suicide is often a preventable cause of mortality.
Also per the CDC YRBS data, 14.9 percent of high school students reported having been bullied electronically, and 19 percent of high school students reported being bullied on school property in the past year. The relative risk of being bullied on school property or electronically was higher for female versus male students, for Black versus White and Hispanic students, and for lesbian, gay, bisexual, and transgender students versus heterosexual students. Both cyberbullying and bullying are associated with depression, anxiety, behavioral problems, eating disorders, irritability, self-pity, decline in school performance, truancy, and somatic symptoms occurring in victim and offender.9
Students who are involved in bullying and cyberbullying (both offenders and victims) have a significantly elevated likelihood of experiencing suicidal thoughts, suicide attempts, or completed suicide.10 A 2014 meta-analysis of nine studies that focused on the relationship between suicidal ideation and peer victimization revealed a robust relationship between peer victimization and suicidal ideation, as well as suicide attempts, across age and gender.11 A 2017 study of bullying demonstrated a compounding effect from experiencing multiple types of bullying.2 Bullying or cyberbullying that is rated as more severe or that interferes with learning at school is more likely to correlate with suicidal ideation.2 Notably, although there is a strong correlation between bullying (online or at school) and suicidality, suicide is a relatively rare occurrence. Cyberbullying and school bullying both appear to increase the risk for suicidal ideation and suicide attempts, however, which are certainly risk factors for completed suicide.9
Review of Legislation
In 1999, when Eric Harris and Dylan Klebold, 12th grade students at Columbine High School in Colorado, killed 12 students, one teacher, and themselves, it was discovered that they had been chronically bullied prior to executing their mass shooting. This event catalyzed a national interest in bullying and the emergence of state antibullying legislation. The first state antibullying law was passed in Georgia in 1999,12 one month after the Columbine shooting. Several states followed suit, including Colorado in 2001.13 Following the events at Columbine, there was increased media attention on several youth suicides that occurred in response to bullying, and then increased legislation concerning bullying. An interest in preventing online bullying followed, and regulation of cyberbullying has gradually been adopted into bullying laws. Washington and Oregon were two of the first states, in 2005 and 2007, respectively, to extend their bullying policies to include online bullying.14,15 Since the first decade of the 21st century, legislation enacted to protect against online abuse and harassment of young people has burgeoned.
State antibullying and cyberbullying laws have been rapidly adopted through the creation of new statutes and amendments to existing statutes. These statutes typically include some or all of the following components: a statement of purpose, definitions of bullying and cyberbullying, a requirement that the school district develop policies regulating bullying, prescribed components of local district policies, requirements for school district policies, and requirements for state education agencies. Most state statutes include a requirement that the school district develop policies to prevent school bullying, cyberbullying, and harassment. Thus, when students experience persistent bullying or cyberbullying, the board of education and the school system may be held liable for failing to protect the students from foreseeable risk.16
Claims against the school may be prosecuted under state law involving claims of negligence or wrongful death, or under federal law on the basis of cyberstalking (as covered in the next section), or as civil rights violations.16
Federal Legislation
There are no federal statutes specifically governing bullying or cyberbullying; in federal court, cyberbullying is prosecuted under statutes governing cyberstalking, and bullying is prosecuted under statutes governing stalking. Cyberstalking is defined as “engaging in conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at or about a specific person, causing substantial emotional distress to the victim” (Ref. 16, p 169). The term cyberbullying is often used interchangeably with cyberharassment, although they are typically differentiated by the age of perpetrator, with cyberharassment typically involving an adult perpetrator, and cyberbullying involving a perpetrator who is a minor. A complete review of cyberharassment and cyberstalking can be found elsewhere.17,18
On April 2, 2009, Representative Linda Sánchez (D-Calif.) introduced the Megan Meier Cyberbullying Prevention Act, but it was not passed by Congress. The proposed law included a fine and up to two years imprisonment for cyberbullying. The act was written to encompass both cyberharassment and cyberbullying.19 Although Ms. Meier's case has been discussed previously in The Journal,20,21 it retains relevancy given its implications and precedent as one of the early cases involving attempted prosecution of cyberbullying.
Ms. Meier was a 13-year-old girl in Missouri who died by suicide in 2006. Ms. Meier, who had been bullied for years, was the target of cyberbullying carried out by a former friend's mother, Lori Drew, aided by the former friend, Sarah, and Ms. Drew's 18-year-old coworker, Ashley Grills. This cyberbullying was perpetrated as retribution for Ms. Meier allegedly spreading a rumor about Sarah. Ms. Drew created a Myspace account for a fictional teenage boy, “Josh,” which she used to initially befriend Ms. Meier and flirt with her. After several weeks, Josh began sending increasingly cruel messages and sharing cruel content about Ms. Meier with others. The final message he sent before Ms. Meier took her life told her that the world would be a better place without her.22 The case was not prosecuted locally in Missouri as no state laws had been broken. As there was no state or federal statute specifically governing cyberbullying, there was no means of prosecuting on the basis of cyberbullying. Ms. Drew was prosecuted federally via the Computer Fraud and Abuse Act of 1986 (18 U.S.C.S. § 1030) based on violation of the Myspace Terms of Use Agreement. She was convicted of three misdemeanor charges and found not guilty of one felony charge.23 On appeal, Ms. Drew's motion for a judgment of acquittal was granted. The district court cautioned that if intentional breach of a website's terms of service was prosecuted, federal law enforcement would be empowered “to pursue their personal predilections” (Ref. 23, p 467) in prosecuting the most trivial of cases. In this case, an adult cyberbullied a child, the child subsequently took her own life, and the adult experienced no legal repercussions for her actions. Today, this case might have been prosecuted under the Missouri state harassment law24 that was passed in 2008 following Ms. Meier's death.
First Amendment Challenges
The First Amendment to the United States Constitution prohibits the government from abridging freedom of speech, thereby restricting the ability of public schools to regulate student speech. Courts have since interpreted the First Amendment to allow certain types of governmental restriction on speech. Examples include speech that causes a substantial and material disruption to the school environment as well as lewd and vulgar speech, overtly offensive language, defamation, libel, fighting words, incitement to violence, and threats that constitute a serious intent to cause violence.25 There is now considerable debate over which forms of free speech on the Internet should be protected and which should be restricted. In some areas, this has been clearly defined: for example, child pornography has been unequivocally denied protection. Conversely, cyberbullying is so newly defined that the subject lacks authoritative precedent and current legislators have little firsthand knowledge of it.26
The courts have both rejected and upheld First Amendment defenses in cases of cyberbullying. For instance, a recent case arguing unconstitutionality of the North Carolina cyberbullying statute reached the North Carolina Supreme Court.27 The case involved high school student Robert Bishop who, along with peers, cyberbullied his classmate Dillon Price. Mr. Price's mother found him so distraught (crying, throwing things, hitting his head) that she called the police. Mr. Bishop was tried and convicted of one count of cyberbullying in the state district court. The appeal process reached the North Carolina Supreme Court, which reversed the decision, finding the cyberbullying statute unconstitutional on the basis of restricting free speech and thus violating the First Amendment.
State laws have attempted to forestall First Amendment challenges by prohibiting cyberbullying only when it rises above a certain threshold. For example, in California, the threshold is defined as bullying that can be reasonably predicted to cause students to experience a fear of harm to their person or property, a detrimental effect to their physical or mental health, a substantial interference with their academic performance, or a substantial interference with their ability to participate in or benefit from the services, activities, or privileges provided by a school.28
Role of the Forensic Psychiatrist
Forensic psychiatrists may be retained in both criminal and civil cases related to cyberbullying associated with suicide. As of January 2021, 48 states (all but Alaska and Wisconsin) include cyberbullying or online harassment in the language of their bullying laws. Most states (with the exception of Maine, Minnesota, Nebraska, New Hampshire, New Mexico, and Wyoming) have criminal laws that might apply to bullying and expressly include electronic forms of harassment.29 Given that statutes governing cyberbullying vary by state, it is imperative that forensic psychiatrists become familiar with applicable statutes in their state or in any state where they may be involved in such cases.30 State cyberbullying statutes for each state are rapidly changing; however, researchers Hinduja and Patchin maintain a list of cyberbullying laws (last updated January 2021) to which the reader is referred.29 Training in child and adolescent mental health is helpful in managing these cases in providing a comprehensive understanding of child development, familiarity with normal and aberrant social relationships and educational experiences, and ability to recognize common presentations of psychopathology in minors.
Experts may be asked to evaluate diminished capacity, state of mind, or mitigation pertaining to the defendant, or to conduct a psychological autopsy of the decedent to determine causation. In the case of cyberbullying without death by suicide, a forensic psychiatrist might be asked to assess emotional damages, i.e., whether the minor experienced any short- or long-term psychological injury as a result of the bullying. In the case of suicide, the expert will be asked whether there are any other possible etiologies for the decedent's suicidality beyond the bullying or cyberbullying.31 The forensic psychiatrist may be asked to opine on liability for the school district or other third parties, such as parents, Internet provider, or software company. Forensic evaluators may or may not be given access to social media material, which is often highly protected.
An analysis of whether cyberbullying was the legal cause of the victim's suicide relies on multiple factors. The defendant's conduct must be both the actual and proximate cause of death, which in many states relies on the question of whether “but for” the defendant's actions, the death would have occurred as it did. In the case of bullying associated with a suicide, the question is whether the suicidal act resulted from extreme pain or suffering inflicted by the bullying, or if the bullying has rendered the victim irresponsible; these questions serve to clarify if the suicide would not have occurred “but for” the bullying.32 Although this question is determined by the trier of fact, forensic psychiatrists can provide insight into the mindsets of the bully or bullies and decedent victim.
Criminal Cases
In a criminal case involving bullying and suicide, the primary role of the forensic psychiatrist is to evaluate the defendant. Most commonly, the defendant is a minor, but in some cases, this may be an older adolescent or an adult (e.g., the case of Ms. Meier). The defendant would be an individual who perpetrated bullying using technology or the Internet, following which, a minor died by suicide allegedly in response to these actions.31 A forensic psychiatrist could be hired by the prosecution or the defense either to perform a complete evaluation or to provide consultation based on the facts of the case.
It is important that the forensic evaluator be aware of the statutes and case law that are relevant to a given case and be able to consider these in providing recommendations to the retaining attorney, forming an opinion, producing a report, and giving testimony in court. Recommendations for how to approach each of these evaluations can be found in the next section.
Evaluation of the Accused Person
A forensic evaluation of a juvenile who has been charged with a crime related to cyberbullying is similar to other juvenile evaluations. The referral question may include whether cyberbullying reasonably led to the suicide. A thorough evaluation will be facilitated by acquisition of police reports, prior treatment records, school records, interviews with parents and other family members, and interviews of any romantic partners or close friends when available. In evaluating cases related to cyberbullying, transcripts of any online conversations and social media activity related to the bullying should be obtained, and the expert should become familiar with the apps or messaging venues used to perpetrate the bullying. In reviewing records and interviewing the accused person, the expert will organize the interview and investigation into six general categories which are reviewed here, along with relevant questions.
First, the expert will be asked to determine if the accused person understood the nature, wrongfulness, and potential illegality of the alleged acts. The expert will also need to determine: if cyberbullying was conducted with malice aforethought (i.e., the intention to cause harm), the likelihood that a cyberbully will engage in future violence, and presence of risk factors for violence and recidivism. In cases of cyberbullying, the perpetrators are usually children and adolescents who typically do not consider the ramifications of their actions or appreciate the implications of harassing behaviors as an adult would.2
Given that instances of cyberbullying vary in severity and consequence, three “aggravating categories” have been formulated as increasing likelihood of antisocial tendencies and recidivism to aid in delineation between immoral behaviors that should not be criminalized, and antisocial behaviors that demand some degree of legal action.33 The three categories are degree of sexuality, degree of intensity, and degree of violence. It has been proposed that only incidents that satisfy at least one criterion are suitably handled by criminal law, and those that do not satisfy any of these criteria can more likely be responded to outside the boundaries of criminal law.33 Attention to these categories may prove relevant in determination of the need for juvenile waiver or transfer of jurisdiction.
Second, the expert should establish the nature and pattern of the cyberbullying. The evaluator must consider the time course of the cyberbullying and its severity, intended targets of the cyberbullying, the accused person's account of the offense, potential motivators, and any previously undetected aggressive or abusive behaviors. The expert should determine if the accused person had previously engaged in cyberbullying, if there were multiple targets, if the accused acted alone or in conjunction with peers, and if the acts occurred privately or publicly. The evaluator should also establish if there was any evidence of in-person bullying, sexting, or revenge pornography, which often occur in conjunction to cyberbullying. An example is the case of 18-year-old Jessica Logan, who was cyberbullied by multiple classmates related to nude photographs of herself that she had sent to her former boyfriend, who had subsequently disseminated them, allegedly leading her to end her life.34 Using the model of three aggravating categories, this would meet the criteria of sexuality and intensity. A complete review of sexting and revenge pornography can be found elsewhere.20,35
Third, it is essential to establish a clear understanding of the relationship between the accused person and the decedent prior to the initiation of the cyberbullying, and determine whether the bullying was bidirectional. The evaluator should ascertain whether the accused person urged the victim toward self-harm or suicide, and whether the accused was aware of the victim experiencing psychological suffering from the cyberbullying.
Fourth, the evaluator should develop an understanding of the online environment in which the cyberbullying occurred and if it was isolated to electronic communication or included in-person bullying as well. The evaluator should inquire as to the means of electronic transmission of the material, including which electronic platforms were used and if the content included text, pictures, or both. In criminal cases, online data are typically obtained by subpoena from the Internet host or service provider.
Fifth, the evaluator should clarify if the accused person acted to aid the suicide, which would constitute a different phenomenon termed “facilitated suicide.”36 Although many cyberbullies will urge or goad the person toward suicidal acts, in facilitated suicide, the accused person helps the person to plan the suicide. The evaluator should elucidate the intensity with which the accused goaded the victim toward suicide, including whether the accused person was present at the suicide of the victim or provided suggestions as to the means of enacting suicide. Additional inquiries include if the accused person provided physical means or props to facilitate suicide, if it was the intention of the accused person that the victim die by suicide, and if the accused person was aware of the victim engaging in self-harm, and, if so, how that knowledge affected the accused's behavior.
Sixth, in order to assess for any mitigation, the expert should explore the home environment of the accused. Particularly salient areas of the psychiatric interview of the accused are delineated in Table 1. Relevant conditions include: pre-existing mental illness associated with suicidal ideation, presence of manic or hypomanic episode or intoxication causing disinhibition, or any conditions that may limit the individual's ability to understand appropriate interactions. Attention should be paid to any history of victimization of the accused, as this could represent a mitigating factor or influence the forensic expert to suggest treatment in a diversion program rather than incarceration. To make appropriate recommendations, the expert should obtain information about the level of structure and supervision at home and the degree to which parents can support intervention efforts.
Civil Cases
Civil litigation is commonly pursued in cases of cyberbullying associated with suicide among minors. The plaintiff is generally the parent or parents of the deceased minor (or any representative of the estate), and the defendant may be the person accused of cyberbullying, that person's parents, the school, Internet service provider, or software company. Civil claims or causes of action could include cyberbullying, wrongful death, liability of the school for failing to prevent off-campus cyberbullying, or negligent supervision. A forensic psychiatrist can help the courts determine whether the alleged acts were proximally and causally related to the suicide, i.e., whether the suicide would have occurred but for the cyberbullying. In civil cases where the defendant is the school district or a school official, the forensic expert may be asked to evaluate liability. The forensic expert will consider whether the suicide or the cyberbullying could have been prevented, or whether the severity of the cyberbullying could have been minimized by appropriate action on the part of the school or particular school personnel. For claims related to negligence, the psychiatrist will be asked to determine whether the care provided by the parents of the accused or the supervision provided by school-based mental health services deviated from the standard of care, and whether the deviation was directly or proximately related to the suicide.
A psychological autopsy of the decedent, if necessitated, requires a thorough knowledge of the case, interviews of collateral sources, and a review of available records.38,39 Digital data may contain important contextual information about the decedent. As much as possible, the aim is to develop an understanding of the decedent's thoughts, feelings, and behavior during the time of cyberbullying; a detailed description of the cyberbullying, including its duration and severity; an understanding of the impact of the cyberbullying; and factors that aggravated or ameliorated the effects of the cyberbullying. To the extent possible, one should attempt to compile a complete psychiatric assessment, including if the decedent met criteria for any psychiatric disorders; an assessment of social functioning and activities of daily living; educational history and scholastic performance; and history of missing school or delinquency. Importantly, the forensic evaluator must attempt to clarify factors other than cyberbullying that contributed to the decedent's distress, depression, or suicidal thoughts, including stressors related to friendships, loss of a loved one, family discord, difficulties in relationships, legal entanglement, and exposure to trauma. The expert should also assess predisposing factors, including family history, developmental history, a history of self-harm or prior suicide attempts, and history of trauma or abuse. Family members, witnesses, friends, teachers, coaches, and school officials can provide additional information on the decedent's exposure to cyberbullying. If the decedent had undergone mental health treatment, this can provide useful information as well as whether the decedent was adhering to treatment recommendations. It would be important to note whether the decedent had a pre-existing medical or psychiatric illness that was exacerbated by the bullying. This information can be obtained through direct interviews, depositions, or other available records.39 In civil cases, the evaluator must be wary of digital evidence, and question who had access to the technology and if the evaluee or the victim shared accounts with others, as well as become familiar with the ways in which both accessed the online environment.
Conclusion
Widespread access to technology among young people has shaped a form of bullying via the Internet that facilitates and even encourages harmful discourse. In areas where most children have access to the Internet, it has become a social tool, and the production of harmful content has become commonplace. Although violence among young people was present prior to the Internet, the social Internet has allowed for a deeper expression of violent language. Cyberbullying has ushered in a relatively new wave of suicides that are postulated to be related to the cyberbullying itself; this phenomenon predominantly affects adolescents as both perpetrators and victims. Forensic psychiatrists may be retained in civil or criminal cases to evaluate the alleged cyberbully, engage in psychological autopsy, and render opinions related to likelihood of recidivism. Forensic psychiatrists who become involved in these cases will need to familiarize themselves with relevant statutes and laws and the questions that arise in doing these evaluations in criminal and in civil settings. We have proposed a six-prong model for approaching criminal evaluations and described a similar approach to civil cases. These cases are complicated by the fact that the victims and alleged perpetrators are most often minors who must be approached with some developmental perspective. This article should serve as a guide for conducting such evaluations.
Footnotes
Disclosures of financial or other potential conflicts of interest: None.
- © 2023 American Academy of Psychiatry and the Law