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COMMENTARY

Forensic mental health aspects of adolescent “cyber bullying”: A jurisprudent science perspective

BY ERIC Y. DROGIN, J.D., PH.D., ABPP (Forensic) AND KATHERINE YOUNG, M.D.

“Bullying” involves “aggressive acts made with harmful intent, repeatedly inflicted by one or more students against another” (Sacks & Salem, 2009, p. 147). It is a global phenomenon that is manifested across cultures (Srabstein, 2008), increasingly noted in clinical practice (Jerome & Segal, 2003), and traceable through centuries of recorded history (Rigby, 2002). While Cro-Magnon adolescents may have had to settle for daubing unflattering pictures of their peers on cave walls, the modern technical incarnation of this behavior-known as cyber bullying-occurs “when students use electronic means, including the use of Internet web sites, chat rooms, instant messaging, text and picture messaging on phones, and blogs, to bully peers” (Erb, 2008, p. 267). According to Sadock & Sadock (2007), “in 2000, 1 of 17 children ages 10 to 17 had been threatened or harassed online” (p. 42).

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COMMENTATOR’S NOTE: For additional information about this commen- tary contact: Dr. Eric Drogin, 350 Lincoln Street, Suite 2400, Hingham, MA 02043. Ph: (877) 877-6692. E-Mail: [email protected].

© 2009 by Federal Legal Publications, Inc.

While some researchers maintain that cyber bullying is similar to more “traditional” bullying in many aspects (Campbell, 2005; Myers & Carper, 2008; Raskauskas & Stoltz, 2007), others emphasize how the long reach and i m p a c t f u l n a t u r e o f t h e I n t e r n e t c a n “ a c c e l e r a t e m o b behavior” (Citron, 2009, p. 62) and in some instances enable harassment by persons whom the victim has never even met (Wolak, Mitchell, & Finkelhor, 2007). Studies vary in finding that the majority of adolescent victims of cyber bullying are male (Raskauskas & Stoltz, 2007), that the majority are female (National Women's Health Information Center, 2008), or that there are no statistically different gender differences in this regard (Williams & Guerra, 2007).

What is clear is that cyber bullying has continued to exert a demonstrably harmful and at times even fatal effect upon those targeted for such harassment:

In California, a hateful Internet campaign followed sixth-grader Olivia Gardner through three schools. In Vermont, a humiliated Ryan Halligan, 13, took his own life after being encouraged to do so by one of his middle-school peers. And in perhaps the most notorious case, Lori Drew, 49, was recently convicted on misde- meanor charges for posing as a teenage boy in MySpace to woo and then reject 13-year-old Megan Meier of Missouri, who later hanged herself in her closet. (Surdin, 2009, p. A3)

Such incidents have inspired legal scholars to opine on the m o s t a p p r o p r i a t e m e t h o d s a s w e l l a s t h e c i v i l r i g h t s implications of preventing and prosecuting cyber bullying. Observing that “federal and state laws neither deter bullying nor provide most victims a remedy for psychological or physical injuries” (p. 149), Sacks and Salem (2009) look to the schools to develop comprehensive anti-bullying polices— including those that address cyber bullying in particular— while Evers and colleagues (2007) cite encouraging successes in transtheoretical-based prevention measures that seek to reduce participation in bullying as well as victim roles. Jacobsen and Bauman (2007) identify increased anti-bullying intervention on the part of counselors with appropriate

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training. The relevance of such interventions is further buttressed by research such as that conducted by Ybarra, Diener-West, and Leaf (2007), indicating that over a third of students harassed online also reported being bullied at school.

Vander Broek and colleagues (2009) warn that “policies that fail to provide an adequate warning that certain conduct is prohibited or that fail to contain adequately defined standards to prevent their arbitrary enforcement can be challenged on v a g u e n e s s o r o v e r b r e a d t h g r o u n d s u n d e r t h e F i r s t Amendment” (p. 16). While Erb (2008) comments pointedly upon the “the muddled law as applied by courts” (p. 267), Citron (2009) asserts that the failure of cyber bullying to meet many jurisdictions' criminal statutory definitions for harassment is tempered by the fact that “targeted individuals could also pursue general tort claims, such as defamation,” as “ f a l s e s t a t e m e n t s a n d d i s t o r t e d p i c t u r e s t h a t d i s g r a c e plaintiffs or injure their careers constitute defamation per se, for which special damages need not be proven” (p. 87).

T h e f o l l o w i n g c o m m e n t a r y s u r v e y s t h e i s s u e o f c y b e r bullying from a “jurisprudent science” perspective that s e p a r a t e l y e m p h a s i z e s f o r e ns i c m e n t a l h e a l t h s c i e n c e , practice, and roles, to assist in ensuring “that the results of c l i n i c a l a n d f o r e ns i c i n t e r v e n t i o ns f o r e a c h i n d i v i d u a l comport with the law's emphasis on principles of justice and fairness” (Parry & Drogin, 2007, p. 3).

Forensic mental health science

The Diagnostic and Statistical Manual of Mental Disorders— o r D S M , n o w i n i t s f o u r t h r e v i s e d e d i t i o n ( A m e r i c a n Psychiatric Association, 2000)—identifies several diagnoses of particular relevance to an understanding of the psychiatric causes and consequences of cyber bullying.

Although current research on the psychiatric comorbidities and sequelae of bullying are primarily focused upon the

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classroom experience, “bullying creates memories that often last a lifetime” (Kowalski, Limber, & Agatston, 2008, p. 1), and the clinical implications of such memories are quite substantial (Smith, Mahdavi, Carvalho, Fisher, Russell, & Tippett, N. (2008). According to Sadock & Sadock (2007), of the approximately 6% of students harassed in this context, one third “found the incidents extremely distressing” (p. 42). Posttraumatic Stress Disorder is thus a logical option for forensic investigation; “however, the requirement that the event be one involving death, serious injury, or a threat to physical integrity, or the witnessing of same, does limit the applicability of this diagnosis in mental injury cases” (Melton, Petrila, Poythress, Slobogin, Lyons, & Otto, 2007, p. 418).

The accessibility, anonymous nature and potential scope of cyber bullying carry additional psychological consequences that are worthy of further research. Studies of classroom bullying show associations between bullying and Attention Deficit Disorder, personality disorders, anxiety, and Conduct Disorder (Kumpulainen, 2008) as well as in increase in subsequent adult suicide rates of bullied children, particularly in women (Klomek, Sourander, Niemela, Kumpulainen, Piha, Tamminen, et al., 2009).

Conduct Disorder is also, of course, a differential diagnostic consideration in assessing the alleged perpetrators of bullying (Kokkinos & Panayiotou, 2004; Kumpulainen, Rasanen, & Puura, 2001; Thomas, 2006), although forensic evaluators will want to bear in mind that the relevant DSM criterion indicates that the examinee “often bullies, threatens, or intimidates others” (American Psychiatric Association, 2000), thus complicating the use of this diagnosis cases in which cyber bullying has been identified for the very first time.

One potentially viable diagnostic alternative is “Child or Adolescent Antisocial Behavior,” the risk of police involvement for which was recently estimated as “20 percent for teenage boys and 4 percent for teenage girls” (Sadock & Sadock, 2007,

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p. 1302). This diagnosis is utilized “when the focus of clinical attention is antisocial behavior in a child or adolescent that is not due to a mental disorder . . . examples include isolated antisocial acts of children or adolescents (not a pattern of antisocial behavior)” (American Psychiatric Association, 2000).

Forensic mental health practice

It can be an exceptionally trying matter to gain the trust and participation of adolescents when addressing cyber bullying, although both male and female subjects are quite capable of grasping the problematic nature of such behavior (Agatston, Kowalski, & Limber, 2007). Crothers and Levinson (2004) identify a number of clinical assessment instruments with potential value for the forensic assessment of cyber bullying behavior. These include:

1. The Bullying-Behavior Scale, designed “to subtly address direct bully/victim problems at school” with “three representations of negative physical actions” and-with more direct relevance to cyber bullying-“three depictions of negative verbal actions”;

2. The Name Calling Survey, used “to measure the extent to which children experience being called names,” including “35 statements that ask children about names they have been called in school, to which they answer yes or no”;

3. Olweus’ Bully/Victim Questionnaire, which commences with “a definition of bullying” and then “investigates the frequency and types of bullying, the location where the bullying takes place, who does the bullying, how often children report bully- ing to teachers or their family, and if the teacher intervenes, what he or she does to stop the bullying”;

4. The Life in School Booklet, employed to enable children to “develop their own definition of bullying,” and targeting high school age students, although “several revisions have been completed so that it can be used for younger students”;

5. The Peer Beliefs Inventory, intended “to assess children's general beliefs about their school peers,” with numerous ques- tions that “refer to antisocial characteristics about peers” that correlate highly with bullying behavior;

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6. The Peer Nomination Inventory, constructed “to enable chil- dren to identify classmates who match particular behavior descriptors,” including “victimization, both verbal and physi- cal,” with the additional option of “using multiple teachers who know the children well and averaging their nominations for each child”; and

7. T h e P e e r V i c t i m i z a t i o n S c a l e, a p p l i e d “ t o d i s c r i m i n a t e between bullied and non-bullied children as determined through self-report and peer reports . . . high scores on the scale are associated with depressed perceptions of self-worth and competence and also with depression” (pp. 499-500).

Of the various measures identified in this commentary, the Olweus Bully/Victim Questionnaire is distinguished by its direct use in research investigating cyber bullying among middle school students (Kowalski & Limber, 2007).

A literature review recently conducted by the American Psychological Association (2004) confirms an ongoing emphasis on forensically relevant assessment research. Forensic evaluators will naturally seek, to the extent feasible, t o m a t c h t h e n o r m a t i v e u n d e r p i n n i n g s o f a p a r t i c u l a r instrument with the personal characteristics of respondents a n d e x a m i n e e s , a n d w i l l f i n d a n i n c r e a s i n g a r r a y o f supportive literature and alternative forms—for example, with the Life in School Booklet (Kalliotis, 2000).

From a more general diagnostic perspective, forensic evaluations of cyber bullying may include the Children's Structured Clinical Interview for DSM-IV Childhood Diagnoses, also known as the “KID-SCID” (Hein, Matzner, First, Spitzer, Williams, & Gibbon, 1998). Related to the assessment of alleged perpetrators, research has demonstrated encouraging reliability and reliability of KID-SCID in the identification of symptoms of Conduct Disorder and related diagnoses (Smith, Huber, & Hall, 2005), while research into the susceptibility of adolescents to Posttraumatic Stress Disorder (Silva, Alpert, Munoz, Singh, Matzner, & Dummit, 2000) encourages the use of the KID-SCID in the assessment of alleged victims.

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Forensic mental health roles

F o r e ns i c p s y c h i a t r i s t s a n d p s y c h o l o g i s t s s e e k i n g t o i n v e s t i g a t e v a r i o u s a s p e c t s o f c y b e r b u l l y i n g m a y b e venturing into areas for which other forms of court-related practice provide little practical experience. Chief among these investigative concerns is the extent to which it is appropriate to seek out online the actual harassing content in question, as well as to track other potential incidents of questionable Internet behavior by juvenile defendants.

S o m e m i g h t a rg u e t h a t s u c h a c t i o ns r a i s e q u e s t i o ns o f “consent” as described in the Ethics Guidelines for the Practice of Forensic Psychiatry (American Association of Psychiatry and the Law, 2005), which specify that “notice should be given to the evaluee of the nature and purpose of the evaluation” (p. 2), and by the Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991), that call for obtaining “the informed consent of the client or party” to “evaluations and p r o c e d u r e s ” ( p . 6 5 9 ) . O t h e r s m i g h t c o u n t e r t h a t s u c h information rests by definition in the public domain, placed upon the Internet for the express purpose of being viewed by others. This dilemma is best addressed by refraining from such online searches until examinees have been informed that these may be conducted.

Forensic psychiatrists and psychologist are likely to share many of the civil libertarian concerns addressed by the legal scholars whose studies are cited supra. Specifically, these evaluators may become uneasy when contemplating the possibility that their participation as experts in criminal p r o c e e d i n g s — w h e t h e r r e t a i n e d b y d e f e ns e c o u ns e l , prosecutors, or the Court-may ultimately contribute to the dilution of free speech rights afforded all users of the Internet.

The American Medical Association's The Principles of Medical Ethics with Annotations Especially Applicable to

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Psychiatry (2009) specify a “responsibility . . . to society” and a broadly defined dedication to “rights” (p. 2), and recognize that “physicians lose no right of citizenship upon entry into the profession of medicine” (p. 6). Discomfort with the First Amendment implications of serving in such cases may ultimately inspire the forensic psychiatrist to exercise his or her recognized freedom to chose “whom to serve,” “with whom to associate,” and the “environment in which to provide medical care” by declining to become involved in matters addressing cyber bullying.

The Ethical Principles of Psychologists and Code of Conduct ( A m e r i c a n P s y c h o l o g i c a l A s s o c i a t i o n , 2 0 0 2 ) s i m i l a r l y r e q u i r e f o r e ns i c p s y c h o l o g i s t s t o “ e x e r c i s e r e a s o n a b l e judgment and take precautions to ensure that their potential biases . . . do not lead to or condone unjust practices” (pp. 1062-1063), and urge them to remain alert to those situations in which their “ethical responsibilities conflict with law, regulations, or other governing legal authority” (p. 1063).

Conclusion

The legally complex and clinically volatile phenomenon of cyber bullying benefits from a surprisingly well-developed r e s e a r c h b a s e - g i v e n s u c h b e h a v i o r ' s r e l a t i v e l y r e c e n t emergence in our society—and the diagnostic categories brought into play in such cases constitute well-trodden ground for the properly qualified evaluator. For these reasons, forensic mental health science and practice are essentially jurisprudent in nature. There are potentially antijurisprudent aspects of forensic mental health roles when it comes to investigation techniques designed to keep pace with emerging technologies, but these difficulties are curable by maintaining an appropriate focus on temporally determined aspects of informed consent.

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