Can School Bullying Amount to a Criminal Offence?

Bullying involves a person who is usually of greater physical strength and/or social power acting aggressively towards or otherwise belittling their target.

School bullying occurs when students bully each other, often for social status within the cutthroat world of student popularity.

For the victims of school bullying, and their parents, the experience can be incredibly disheartening and frustrating.

Many may be wondering whether the criminal law can apply to acts of school bullying which go to far.

Here’s a rundown of how the criminal law can apply to incidents of school bullying.

How widespread is school bullying?

School bullying is incredibly widespread in Australian schools. One systematic review and meta-analysis found that 1 in 4 students had ever been a victim of school bullying and just over 15% had experienced bullying recently.

Experiences of school bullying are highly correlated with poor mental health and school outcomes, with some research indicating it can start young people on a path towards delinquency and criminal behaviour.

Victims of bullying in Australia have been shown to have very high rates of anxiety and depression, which also increase their risk of suicide.

Age of criminal responsibility

Whether a school bully can be charged with a crime depends whether they have reached the ‘age of criminal responsibility’.

Criminal Code Act 1995 (Cth)

That age is contained section 7.1 of the Criminal Code Act 1995 (Cth) which applies across Australia and states that, ‘A child under 10 years old is not criminally responsible for an offence’ under that Act.

Section 7.2 of the Criminal Code Act contains the common law presumption in relation to children aged at least 10 but less than 14 years of age, stipulating that:

(1) A child aged 10 years or more but under 14 years old can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.

(2) The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.

Crimes Act 1900 (NSW)

The 10 year age of criminal responsibility is also enshrined in section 5 of the Children (Criminal Proceedings) Act 1987 which provides that, ‘It shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence’.

However, unlike Commonwealth legislation, the law in New South Wales does not contain the common law presumption relating to children aged at least 10 but less than 14 years of age.

Discrete offence of assaults at schools

School bullying which comes in the form of physical violence could give rise to a number of offences including common assault, assault occasioning actual bodily harm, recklessly wounding or causing grievous bodily harm or intentionally causing grievous bodily harm.

However, a number of discrete school-related offences are outlined under section 60E of the Crimes Act 1900.

Section 60E(1) outlines an offence where a person  assaults, stalks, harasses or intimidates any school student or member of staff of a school while the student or member of staff is attending a school, although no actual bodily harm is occasioned. This carries a maximum penalty of 5 years imprisonment.

Section 60E(2) outlines an offence where a person  assaults a school student or member of staff of a school while the student or member of staff is attending a school and by the assault occasions actual bodily harm. This carries a maximum penalty of 7 years imprisonment.

Section 60E(3) outlines an offence where a person wounds or causes grievous bodily harm to a school student or member of staff of a school while the student or member of staff is attending a school, and  is reckless as to causing actual bodily harm to that student or member of staff or any other person. This carries a maximum penalty of 12 years imprisonment.

The offence of stalking and harassment

A prolonged campaign of bullying could give rise to an offence of stalking and harassment.

Section 13 of the Crimes (Domestic and Personal Violence) Act 2007 outlines an offence of stalking or intimidating another with the intention of causing the person to fear physical or mental harm. This offence carries a maximum penalty of 5 years imprisonment and/or a fine of $5,500.

‘Stalking’ includes:

• following the other person about;
• watching or frequenting the person’s residence, work, business, or any place the other person frequents for social or leisure activities; and
• contacting the other person through the internet or other technological means.

‘Intimidation’ means:

• conduct amounting to harassment or molestation;
• approaching the other person by any means including phone, SMS and email in order to make them fear for their safety;
• conduct causing the other person to apprehend violence or damage to themselves or their property; and
• conduct causing a person with whom you have a domestic relationship to apprehend being injured

To establish the offence, the prosecution must prove beyond reasonable doubt that you:

• you stalked or intimidated another person; and
• you intended to cause the other person to fear physical or mental harm.

Cyberbullying

Increasingly, school bullying can occur in the form of online threats or harassment.

Under section 474.17 of the Criminal Code Act 1995  a Federal offence  applying where a person using a  carriage service (such as the internet) to menace, harass or cause offence carries a maximum penalty of 5 years imprisonment.

The offence applies if a “reasonable person” would regard the conduct as “menacing, harassing or offensive”.

Going to court for a criminal matter?

If you are going to court over a criminal case, call Sydney Criminal Lawyers anytime on 9261 8881 to arrange a free first conference during which one of our experienced defence lawyers will assess the case, advise you of your options and the best way forward, and fight for the optimal outcome.