South Fayette schools criticized for prosecuting young victim of bullying
Youth's recording students harassing him in class could have brought felony charge
April 20, 2014 11:42 PM
Shea Love, Ellisen Lowe, and Christian Stanfield celebrated Wednesday outside Bubba's Gourmet Burghers in South Fayette after an announcement that wiretap violation charges against Christian were to be withdrawn.
By Paula Reed Ward / Pittsburgh Post-Gazette
Technically, under the law in Pennsylvania, it is possible South Fayette police could have sought a felony wiretap conviction against a 15-year-old boy who recorded others in his class allegedly bullying him.
But, just because it could rise to the level of a crime, should it be charged?
"The fact that something is a crime doesn't mean that a prosecutor has any obligation to prosecute it," said University of Pittsburgh law professor John Burkoff. "Sometimes not prosecuting makes a lot more sense in that it best reflects the community's interests.
"If there ever was a case where not prosecuting was the fairer, the more just, and the more sensible thing to do, this case was probably it."
Christian Stanfield had been having trouble in his math resources class. A group of other boys had thrown hand sanitizer on him, shot spitwads at him and even tried to burn him with a lighter, said his mother, Shea Love.
Frustrated and hoping to prove what he considered a string of bullying incidents, Christian took his mini iPad to math and used it to record seven minutes worth of class Feb. 11.
As the teacher was attempting to instruct him one-on-one, other boys could be heard in the background being vulgar, telling each other to pull Christian's pants down and at one point slamming a book loudly in an attempt to scare him, Ms. Love said.
The teacher, besides telling the boys to stop talking, did nothing to discipline them.
The next morning, Ms. Love called South Fayette High School, told them what she'd heard, and administrators said they would handle it. They called Christian to the office, forced him to delete the recording and called the South Fayette police to report a possible wiretapping violation.
In Pennsylvania, it is illegal to record another person without permission.
"The question is whether they had a reasonable expectation of not being recorded," Mr. Burkoff said. "Did these bullies have a reasonable expectation that they were not being recorded? There's every chance that the courts [would] find that they did, that privacy rights are that strong and that that level of privacy protection was what the Legislature intended."
But Witold Walczak, the legal director for the ACLU of Pennsylvania, said he does not think the students in the classroom had a reasonable expectation of privacy, and therefore, the wiretap law wouldn't apply.
But more than that, he said, the idea of filing any charge against Christian is ridiculous.
"What makes this South Fayette situation stand out, not only did they have questionable grounds to bring the charge, but they used it to retaliate against the mom for her complaining about the school's failure to protect her child," Mr. Walczak said.
South Fayette police Lt. Robert Kurta chose to charge Christian not with a wiretapping violation but a summary charge of disorderly conduct. The lieutenant said he did not want the boy to have a felony record. Christian was found guilty and fined $25 by Magisterial District Judge Maureen McGraw-Desmet.
Last week, though, the Allegheny County district attorney's office, which was not consulted before the disorderly conduct charge was filed, withdrew the count, saying that Christian's actions did not rise to the level of a citation.
Acting South Fayette police Chief John Phoennik said he could not comment on the case pending possible litigation.
South Fayette school superintendent Bille Rondinelli issued a statement that she could not address the situation because of student privacy interests but that the district takes concerns about bullying seriously.
That Lt. Kurta reduced the charge to a summary count doesn't assuage Mr. Walczak's concerns.
"Just because it's the lesser of the two evils doesn't mean it's not still evil," he said. "The point is, the kid didn't do anything wrong."
On Wednesday, in response to the outcry over Christian's situation, state Rep. Jesse White, D-Cecil, announced plans to amend Pennsylvania's wiretap law so there would be an exclusion in instances of bullying.
The amendment, as explained by Rep. White says: "a bullying victim, or a witness to bullying, would be able to record any electronic or oral communication while on school property or at a school-sponsored event, if that person is under a reasonable suspicion that evidence of bullying may be obtained from the recording."
The legislation would bar the individual making the recording from publishing, reproducing, or transmitting it to the public.
"I was being attacked relentlessly by anonymous people," he said. "I did the worst thing possible when being bullied. I tried to bully back. Bullying doesn't necessarily end in high school. It's a problem no matter how educated you are or how experienced you are.
"I'm living proof of that."
But, he continued, "You've got to be positive and proactive in how you confront your bullies."
He congratulated Christian for taking action.
"If Christian has prompted a change in legislation, that's amazing," Ms. Love said. "It's a start."
Mr. Burkoff said Rep. White's legislation sounds like a "sensible approach."
"This bill may need a little bit of fine tuning to make sure that it doesn't become the exception that swallowed the rule," Mr. Burkoff said. "We want to deter bullying. But we also want to deter people from recording absolutely everything going on around them without the consent of the people being recorded."
If the exception is too broad, the professor continued, "then two years from now, every high school kid in the state who ends up wearing Google Glass to school may end up claiming the right to record everything going on around him. A scary thought."
Paula Reed Ward: firstname.lastname@example.org, 412-263-2620 or on Twitter @PaulaReedWard.
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