Background
I was privileged to be a guest on Michael Carr-Gregg’s panel at the Positive Schools 2014 conference in Melbourne. As part of that discussion Dr Carr-Gregg presented a factual scenario which I will now reproduce as faithfully as my memory allows.
A 15 year old boy used an internet site to make false claims that a teacher at his school was a paedophile. The teacher was then subject to a degree of terrorisation, including bottles being thrown at his house from cars driving past, and vandalism and graffiti on his house. The teacher suffered a nervous breakdown.
The boy had a history of this sort of conduct, having made two similar (presumably false) claims against two separate teachers, using the internet to publish his damaging false claims.
Dr Carr-Gregg presented these facts based on a real case scenario. The scenario served to raise an important question regarding what we should do about repeat problematic juvenile conduct: Should we incarcerate the offending juvenile?
Introduction
The question, as posed, raised the issue of crime and punishment, and raised spectres of powerlessness in the face of repeated irresponsible juvenile offending. Whilst the question posed considered juvenile incarceration, this essay explores the dangers I perceive in uncritically characterising the boy’s conduct as criminal.
At the outset, two general observations must be made. First, I am remembering facts, reproduced above, that were in turn based on a synopsis of a real scenario. This essay uses those facts to canvass important issues of responsibility, but it must not be assumed that these facts represent the complete picture of a real case. This essay deals with general themes, and cannot be taken as any sort of judgment on the particular parties.
Secondly, the teacher suffered a nervous breakdown. No disrespect to the teacher is intended in the following discussion. One can only imagine the private hell a person in this situation endures. Teachers are vulnerable to these types of allegations. We can protect children and accused at the same time, provided we accept children deserve protection, and also accept an adult can nonetheless be wrongly accused.
This essay is divided into two parts. Part I of this essay deals with responsibility issues. Part II poses that we all need to respect the rule of law.
Part I Criminal responsibility
Perhaps you are involved in education, perhaps you are a parent. If so, you have likely found yourself attempting to help a child take responsibility for their actions. This can be expressed in a whole number of ways. A common scenario in my household, when our daughter was 3, went something like:
‘I know it was a special dolly, but unfortunately once you’ve torn off both its arms and chewed off its head, it just doesn’t fit back together properly.’ Followed by ‘No, I can’t buy you another one, you will just have to be more careful with your dolls next time’. Followed by one spouse running to the other to explain why there was no replacement before our little monkey could repeat her request, absent what she undoubtedly considered to be a few minor details.
That story was told to explain responsibility. There’s a hidden element to the story which I’ll get to later. For now, what is it that makes someone responsible for an event like a broken doll?
Here, she must have known that the doll would break. Yet she went ahead and did the actions that broke the doll. Perhaps she thought it didn’t matter, because her otherwise nice parents would simply buy another. However that may be, it doesn’t detract from the responsibility for breaking the doll. Perhaps you won’t agree with me on that point, but for now, take it as granted so we can further elucidate the concept of responsibility.
We’ll consider the above scenario to be the first option of four variations. As such we will call it number one. Now consider the three following scenarios, numbered two to four. In each scenario, we will work on the premise that if my daughter is not responsible, she will be given a replacement doll.
- All her other dolls are really tough, and have never shown any wear and tear from being pulled every which way and being bitten. If only this one doll was weak, would she be responsible?
- All the other dolls are fragile, but in order to ‘avoid’ responsibility, she instructs a playmate to bite the doll and tear its arms off. Who is responsible?
- She is obviously attached to her doll, and says something mean to her friend. Her friend is very sensitive, and a little bit volatile. Her friend waits for her chance for revenge, and when an opportunity presents itself, her friend damages the doll. Who is responsible?
You may have intuitively come up with the answers. You might agree with me that the answers are:
2) No. 3) My daughter. 4) Her friend. Therefore in (2) and (4) she will get a replacement doll; in (1) and (3) she will not.
What is the variable present in each? The answer is foreseeability.
In the first and third scenarios, it is quite foreseeable that my daughter’s conduct would damage the doll. In the second and fourth scenarios, it is not foreseeable that the doll would be damaged. (NB – The first and third scenarios also raise some other issues with respect to intent and procuring offences, but this essay focuses on the foreseeability issue).
The reasoning behind focussing on foreseeability is because it helps to establish causation or legal responsibility. While law courts have various tests for causation, and these tests can expressed in various ways, underlying each test, when it comes to assigning legal responsibility, is foreseeability. It is not just about whether the perpetrator in fact foresaw the outcome. It is about whether an ordinary person would foresee the possibility of the outcome. If an ordinary person wouldn’t foresee the outcome, then it is not fair to say the perpetrator is legally responsible.
We are now getting closer to the heart of the problem with our juvenile defamer. First though, there is a complication in the scenarios presented above: Age. What is foreseeable to you and me, with our life experiences, is far greater than what is foreseeable to young people. Thus we teach responsibility to our children at times appropriate to their development. For us, we’d certainly considered this by the time our daughter was 3 years old. (We’d actually considered it earlier, but our daughter is quite adept at hiding knowledge from us, so she can get away with more naughtiness).
So now when we talk about responsibility and foreseeability, we need to think about what is foreseeable to an ordinary person of the same age – at least in the case of juveniles. Now we are right at the heart of the problem. Would an ordinary 15 year old foresee that the teacher’s house would be vandalised? That the teacher would be terrorised? This is a delicate question, but it is at least a possibility that they would not. In my view, they might not foresee that anyone would take their allegation seriously in the first place, and would not foresee that others would terrorise the teacher named. Of course you may take a different view. The danger lies in assuming the 15 year old is responsible uncritically.
There is one further important aspect to this scenario. That relates to the criminal conduct of the other parties. The 15 year old defamer had no connection with them, other than the fact they had read his post on a website. The other parties we therefore call ‘third parties’. One of these third parties was apparently old enough to drive, so was either an adult or nearly an adult. The others had access to graffiti equipment. In WA at least, minors’ access to graffiti equipment is restricted. Thus we can say that at least some of the terror levelled at the teacher was levelled by older people. We can also clearly see that the third party conduct was criminal. The scenario involved at least property damage and public disorder offences, and possibly more serious charges as well.
So should a 15 year old be held legally responsible for the criminal actions of third parties, when a person of that age would arguably have not foreseen what would follow? In my view, the answer to that question is no. That brings us to Part II – respect for the rule of law.
Part II – Respect for the rule of law
If the 15 year old is not responsible, we must consider who is. Of course one might argue that no-one is legally responsible. There are times when that argument is viable. Not so here. Here the older people committed crimes calculated to harass and strike fear in an individual, all because they read an accusation on a website.
Our legal system is not perfect, no system is. Our system relies primarily on complaints. If no one lets the police know a crime might have been committed, the State takes no action – it can’t, because it doesn’t know about it. Further, our scenario involved allegations of paedophilia. It would be particularly naïve to suggest all victims would come forward in a case like this. Indeed, it would be naïve to suggest all victims should be told they must come forward.
Nonetheless, if a person does come forward, we need to trust that our system generally gets it right. It would be foolish to say it always does. Innocent people are convicted (if rarely, but it certainly happens), guilty people go free (who can say how often this happens?). Significantly though, if a jury or a magistrate, with all the information before them, tested by those trained in forensic advocacy, together with a public prosecutor for the State and a lawyer for the accused, can’t get the answer right, then an outsider certainly has little hope of doing so. We must also respect that people can come forward and have their complaint taken seriously. Perhaps that was not the case (say) 30 years ago, but there has been a shift toward taking complaints of child sexual abuse very seriously indeed. So we must respect the rule of law, and respect that our system generally gets the answer right. We must respect the fact that although our system is imperfect, an outsider is in no better position, indeed is in a far worse position, to assess the guilt or innocence of a party.
In our scenario no one had been charged. There wasn’t even any real evidence. The real criminals in our scenario were acting on the mere writings of one person on the internet. To act on that, to the terror of an innocent person, is in my view criminal, and betrays a lack of respect for the rule of law. Their vigilante actions should not be romanticised, and responsibility for their criminal actions should not be passed onto the 15 year old in question.
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Toby Nisbet is a lecturer and coordinator of the law program at Edith Cowan University in Western Australia. He is happy to discuss criminal or constitutional law with teachers for the purposes of education. You can email him on t.nisbet@ecu.edu.au
