1. School bullying: a 21st century societal phenomenon
Bullying is generally defined as an aggressive, intentional act perpetrated by an individual or a group of individuals, repeatedly against a victim who cannot easily defend himself or herself.
More specifically, school bullying is characterized by three aspects: the repetition of a behavior, creating a relationship of domination and the existence of an intention to harm. It takes the form of aggressive behavior, whether verbal (threats, insults, lies, mockery), relational (exclusion), physical (beatings, racketeering, sexual harassment) or material (theft, damage, etc.). The effects on the young victim can be extremely harmful: dropping out of school, social isolation, anxiety, depression or somatization. In the long term, the victim of harassment can suffer significant consequences in his or her psychological and social development.
The main problem is the difficulty victims have in expressing their suffering. Therefore, fighting against school bullying requires first of all an awareness raising among students and school staff in order to avoid any lack of reactivity or minimization of the phenomenon.
2. Different international approaches to a new form of harassment
● French law: the development of legislation criminalizing school harassment
In French law, harassment is punishable under the Penal Code (C. pén. art. 222-33-2-2). Acts of harassment in the school environment are therefore covered by this offence. The French Penal Code also criminalizes violence resulting from acts of hazing and hazing itself, incitement to suicide, as well as the dissemination of degrading images or invasion of privacy (C. pén. art. 223 ff). A right to continue one's schooling without harassment has even been enshrined in article 511-3-1 of the Education Code. However, despite the qualification of school harassment as a criminally reprehensible offence, no sanction is mentioned.
● The German case: the violation of the student's personality by the teacher
Unlike French law, German law does not directly provide for instruments to punish school harassment, but its constituent acts are nevertheless likely to be sanctioned by various provisions of the Criminal Code or by disciplinary measures.
The Oberlandesgericht noted that there is a duty of protection on the part of teachers towards pupils during school hours, as long as the latter are obliged to attend school. In the Ruling of the Oberlandesgericht Zweibrücken (Germany) of May 6, 1997, Az. 7O 1150/93), it was considered that the seriousness of the infringement justified the payment of moral damages.
● The Anglo-Saxon approach: the central role of schools
In the United States, in the absence of federal legislation aimed at specifically punishing harassment as such, including school harassment, there is some protection against acts of harassment with specific characteristics. Each state has anti-harassment laws or amendments. These laws have some common denominators, such as requiring schools to take action.
The United Kingdom also has no specific anti-bullying instruments, delegating to schools the task of protecting schoolchildren, including outside the school grounds. The imposition of sanctions in the event of reprehensible behaviour is possible without any obligation on the part of the schools in this respect, unlike in American state laws.
It can therefore be seen that, in these two examples, the school is in the front line of responsibility, whether because of the risk of action against it or the threat of administrative measures.
● Swiss law: a legal vacuum on the issue of school bullying
In Swiss law, school bullying is not subject to any specific provision. However, the doctrine generally tends to assimilate it to art. 328 of the Code of Obligations, which concretizes the protection of the employee's personality against harassment occurring in the workplace. In fact, the community bond on which this article is based also exists between students and other members of the school. It is based on the duty to attend compulsory school. A crucial distinction must be made between the obsessive dimension of harassment (or stalking) and school harassment as described above (ATF 5A_526/2009 of 5 October 2009, c. 5.3, SJ 2011 I 65). Taken separately, the acts of the schoolchildren may seem harmless, but taken as a whole, their repetitive nature is destructive for the young victims.
At the legal level, cantonal laws also provide for instruments to sanction the failure of pupils to perform their duties. Art. 115 al. 2 of the Law on Public Education of September 17, 2015 mentions that "any act of violence, in any form, committed by students in or out of school [towards teachers and fellow students] is prohibited."
In view of the different legal approaches put in place, it seems that school bullying in its legal aspect is very poorly regulated or even unknown in some legislations. Switzerland, being one of the latter, focuses its attention on making schools responsible. However, it is frequently observed that prohibitions of violence are only accompanied by light disciplinary or administrative sanctions. They are almost insufficient in a context of harassment involving vulnerable people. Thus, it is necessary to take a stand on the problem by putting in place a strict policy of prevention and adequate legal sanctions to prevent the perpetrators and bystanders of harassment from minimizing the problem.
This article does not aim to evaluate which system would be the best, but highlights the need for a legal qualification. Legislation specific to school bullying could help to better target the problem and ensure a minimum of legal security for victims.
Ambre Schindler & Jennifer Gaumann