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Should parents be criminally liable for kids' cyberbullying?

By Mark O'Mara, CNN Legal Analyst
October 20, 2013 -- Updated 1449 GMT (2249 HKT)
STORY HIGHLIGHTS
  • Mark O'Mara: Two Florida girls charged with cyberbullying of 12-year-old who committed suicide
  • Parents of one girl say she has an alibi and that they monitored her Facebook account
  • O'Mara: If parents are ignorant or apathetic, should they be held responsible for bullying?
  • He says law should impose criminal liability under certain circumstances

(CNN) -- Two girls in Florida, 14 and 12, have been arrested and charged with aggravated stalking -- cyberbullying.

They allegedly tormented a 12-year-old girl named Rebecca so relentlessly that last month, Rebecca leapt to her death from a tower in an abandoned concrete plant.

The arrest came after the following post was made on the 14-year-old's Facebook account: "Yes IK I bullied REBECCA nd she killed herself but IDGAF." Polk County Sheriff Grady Judd said he would charge the parents if he could, but there were no "obvious charges" against them.

Mark O\'Mara
Mark O'Mara

Before filing charges against the girls, Judd asked the parents to bring the girls in for questioning. They refused.

If a teenager makes Facebook posts about the suicide of the girl she allegedly bullied, the parents might argue that they have no effective way to monitor or curtail her online behavior. They could say they don't know what she's doing, and they don't care.

Mother of girl accused of bullying Florida teen arrested on unrelated charges

The question is this: Is ignorance and apathy about a child's cyberbullying criminal? Under our current laws, it looks like the answer is no.

But in a case such as this, should willful blindness or gross negligence be criminal? I think they should, and here's why: 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 cell phone provided by the parent, how is that different?

Parents need to understand that the technology they give to their children can be used to break the law and inflict harm. Parents need to understand that allowing their children the privilege of going online comes with responsibility and liability.

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The father of the 14-year-old girl in this case spoke to CNN's Chris Cuomo and said he regularly checks his daughter's Facebook account. He said his daughter was asleep when the Facebook post was made, and he suspects the account was hacked. When asked about other online services used by the daughter, Kik and Ask.fm, the parents indicated they had not heard of them.

Most of today's parents would be astonished by their children's online behavior. But they shouldn't be. Just because today's parents didn't grow up with social media doesn't mean they can be forgiven for not knowing about it.

The Internet is a portal to a boundless virtual world. It offers enormous opportunities for social interaction, and I'd suspect most tweens and teenagers would argue it is crucial to their socialization experience. If they're not online, they're missing out.

Parents, beware of bullying on sites you've never seen

That means it is fertile grounds for those who wish to harass, antagonize or bully. And it's a place where they can inflict emotional injury in a detached, almost anonymous way -- a coward's way.

If parents are not going to assume responsibility for their children's online access on their own -- and it seems like the parents in this case are not -- then I would support legislation that places legal responsibility on parents, making them liable for what the children do with the online access parents provide.

I am drafting a bill that would give Judd and other sheriffs the "obvious charges" needed to hold parents accountable. I do not think we should enact knee-jerk legislation because of a singular event, but this is not a singular event.

I'm thinking about the Steubenville rape case, where teenage boys felt it was OK to post photos showing abuse of a teenage girl online.

I'm thinking about the case of a former NFL player who discovered 300 teens were vandalizing his home because they were posting on social media while they did it. Where are the parents?

I understand there are substantial obstacles in the way of passing such legislation. Once upon a time, I worked for the Florida House Governmental Operations Committee, and I learned how to draft a bill that can pass constitutional muster and which addresses urgent matters in a balanced way.

While it is a straightforward process to hold a parent responsible when a child uses a dangerous object such as a gun, it's more difficult in the case of a nondangerous device such as a cell phone or a computer.

Moreover, holding a parent liable requires proof that they had knowledge of the activity, or at least were grossly negligent in their parental responsibilities, and we have to recognize that teenagers can find ways to avoid detection. In this context, a parent could be grossly negligent by having absolutely no supervision of child's Internet presence (just like leaving a kid in a hot car, or playing on a busy street), or if a parent was notified of potential problems with Internet presence by a complaining parent or a school official or cop, and then failed to do anything to address it..

Finally, there are constitutional due-process concerns with holding a third party liable for criminal acts, especially when a statute already exists to hold the child criminally liable.

In the wake of this suicide, Judd has implored parents to take more responsibility for their children's online behavior. 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.

Social media has entered the "Wild West" phase. It's been unregulated so far because it's fallen outside the view of our lawmakers. Nonetheless, we are seeing example after example of people using social media for nefarious purposes.

Cyberbullying is an undeniable problem, and we should not be satisfied with just asking kids to "toughen up and take it."

I believe that kids have a right to some sense of safety and security, and that is threatened by cyberbullying. It's up to parents to protect their kids, and if they don't know how to, maybe some legislation holding them liable if they don't will provide the needed motivation for them to get involved in their kids' online lives.

This issue is urgent and critical, and we need to act before we lose another child.

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The opinions expressed in this commentary are solely those of Mark O'Mara.

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