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Bullying: Is Fighting Back Self-Defense Or Battery?

Jewlyes Gutierrez is a 16-year-old transgender high school student. Born male, but identifying as a female, Gutierrez says she was bullied by three of her female classmates for being transgender. Gutierrez asked school officials to intervene, but the harassment and tormenting continued until one day, she snapped. She fought back, starting a fight against the classmates who had bullied her for so long. The fight was caught on cell phone video, and the video eventually landed at the District Attorney's office. Gutierrez was charged with battery (misdemeanor); none of the others were charged.

The District Attorney declined to discuss the case. The Public Defender, Kaylie Simon, however, stated precisely the controversy that has triggered a national discussion: "I think by charging her, it sends a message to bullies that you can bully individuals, and that adults will then further victimize the person that you've been tormenting."

Even the school board president felt that a criminal charge was excessive, saying the case is not "something that should rise to the level of where it has to go to the District Attorney's office for prosecution."

What happened here? In previous Thomas Law Firm blogs on bullying, and in news in general, it is the bully who gets punished and the bullied who is protected by the law. This case appears to have turned the norm on its head, since the bullies were not punished by the school or the District Attorney, and the bullied was not only not protected by either, but the bullied was punished--criminally.

The critical difference in this case--and what the criminal liability hinges on--is the timing of Gutierrez's act. If Gutierrez were being bullied at the time she lashed out at the bullying classmates, the actions that now allegedly constitute battery would be self-defense. But because the bullying was not taking place at the time Gutierrez "snapped," the same actions are being characterized as battery.

There are many that believe that the timing of the action should not determine the nature of the action. When someone is bullied over a period of time by the same group of people, or by the same individual, the relationship of bully to bullied is established. All the torment, harassment, and victimization is always there, ready to rise to the surface and cause the bullied person to "snap." The bullied person can "snap" in the midst of an incident of bullying, or simply in the presence of the bullies. When the "snap" occurs should not determine whether the actions constitute self-defense or battery.

Previous blogs discussed cases of extreme bullying and legal actions that could be taken against the bullies. In this case, and one of the reasons it has caught the nation's attention, the victim became the perpetrator, or so it appeared. Upon closer look, this case is really no different from any other bullying case: someone is different, and they are bullied because of that difference. The bullied person fought back against the bullies. Where and when do not change that simple equation.

If you are a victim of bullying, contact the Thomas Law Firm for information on legal action that can help you.

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