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Jonathan Martin's Polite, Suicide-Free Society

11/18/2013 05:42 pm ET | Updated Jan 23, 2014

When Miami Dolphin Jonathan Martin complained he was bullied by teammate Richie Incognito, the public chose sides in a way we have not seen before in recent bullying stories. Almost always, the "victim" garners overwhelming public sympathy and the accused bully is despicable. When the victim commits suicide, the bully is often times deemed a murderer.

But in the context of football, one of the most brutal sports in American culture, the public is divided. Some side with Martin, others with Incognito. Some Incognito sympathizers call the "bullying" a form of hazing common in football. They say football is marked by a culture designed to instill toughness, and Martin is nothing more than weak or mentally unfit to play the sport. On the flip side, some Martin sympathizers say that there is a standard of sportsmanship. They say Incognito crossed the line by using racial slurs and layering on his verbal abuse too thick.

This is the first recent story that transplants the topic of bullying into a sports world ill-equipped to handle such allegations. There are no anti-bullying policies in the NFL. Instead, Incognito was suspended under an overly broad Collective Bargaining Agreement clause, for exhibiting "conduct detrimental to the team."

In the United States, almost all anti-bullying legislation applies to middle school and high school students and mandates schools develop anti-bullying policies. Some may argue even those laws, do not establish suitable punishments for bullying.

Many believe there should NOT be legal ramifications, because bullying is a social right of passage -- a fact of life. Yet, when a frightening number of teens began committing suicide and blaming it on bullying via social media, legislation started taking effect. Just because social media has drawn attention to bullying among teens, that does not mean plenty of adults are not bullied at work or at home. Workplace bullying is prevalent but the stigma surrounding adult bullying shrouds it in secrecy. Martin's allegations demonstrate why. The public is typically skeptical and unsympathetic toward adult bullying allegations.

The Martin story raises the question, should there be federal or state legislation that addresses bullying in an adult context? There IS an overwhelming reason for legislation aimed at adults and that legislation may even prove more helpful in protecting accused bullies in some situations than their victims.

Consider the Tyler Clementi case. Clementi, a gay student at Rutgers University, jumped to his death in 2010, not long after his college roommate, Dharun Ravi, secretly videotaped him in a sexual encounter with another gay man and displayed it to others. Following Clementi's suicide, talk-show host Ellen DeGeneres drew attention to the alleged bullying-induced suicide and the case garnered national attention. Public pressure intensified on prosecutors to hold Ravi accountable. However, the evidence and the lack of applicable anti-bullying laws in higher education prevented Ravi from being charged with Clementi's death. Instead, prosecutors dug deep to find something to charge him with. They charged Ravi with invasion of privacy and with bias intimidation, a hate crime. The bias intimidation charge was tacked on as a sentence booster to increase Ravi's penalty, if convicted.

This commonly employed prosecutorial tactic of twisting the law to create ancillary charges when none fit the perceived crime is the reason why this country needs specific anti-bullying legislation. Consider the result: at Ravi's trial, critical evidence was suppressed and deemed inadmissible because Ravi was not on trial for Clementi's "murder"/suicide. Clementi reportedly left behind a note. The writing was a key piece of evidence that may have shed light on his mental state and his reason or reasons for committing suicide. The note was deemed inadmissible and irrelevant to an invasion of privacy charge. It was quite apparent that though not technically charged with murder, Ravi's entire trial reeked of that latent accusation. The 15-count conviction was full of charges piled on after the initial indictment, because of public pressure. Those charges were designed to maximize punishment as a compensatory tactic for not being able to bring a murder charge under the law. Yet the note was not deemed relevant.

Clementi long hid his homosexuality from his devout Christian parents. He finally came out of the closet just before heading off to Rutgers. According to messages Clementi wrote, his mother, an evangelical Christian was less than accepting of his sexual preference.

Did Clementi mention being rejected by his mother in the letter? Did he feel he let those he loved down by a sexual preference he could not control? The answers are critical, because, they would explain whether Clementi's suicide was a direct result of Ravi humiliating him or whether, as in most suicides, it was the last straw in a series of emotional stresses that built up over the months or years leading to his death. In the event that Clementi's mother contributed to his emotional distress, we'd then have to ask ourselves, should she have been charged? Who was more instrumental in Clementi's death, his mother, Ravi or neither? Or, was there even more to it?

This is not to say that Ravi shouldn't have been held accountable for his actions. But, if Clementi wrote his feelings, why were those documented feelings ignored but circumstantial evidence from before the videotaping was admitted? It illustrates a backwards system. It demonstrates that when prosecutors don't apply the law properly, procedural rules don't operate properly and the entire trial and its outcome becomes distorted. A prosecutor's motivation for charging must be in harmony with the crimes ultimately charged.

This is the precise problem with there being a lack of anti-bullying legislation. The entire blame is placed on the bully or the victim with no standards governing the application of blame in varying circumstances. Policymaking is essential to create a definition. Elements must be met to charge and punish appropriately. The parameters of such laws and the appropriate punishment would be a topic of debate, but that's the case with every law. There's an argument to be made for those who think the definition of "bullying" should take on a higher threshold in the context of sports.

In Martin's case, the league had to reach to find grounds to punish Incognito because there's no appropriate policy in place. Some think the punishment is too harsh, others, not harsh enough. Incognito's punishment could technically even be extended beyond the NFL. "Bullies" sometimes face federal charges under civil rights law or discrimination and harassment charges at the state-level. Again, an example of prosecutors improperly applying laws to situations they weren't intended for. Even the NFL has anti-discrimination and anti-harassment policies. Should Incognito be punished under those broad laws or not punished at all because anti-bullying laws don't exist in the NFL? Was his behavior even bullying?

We just don't have a law to guide us on what is and what isn't acceptable in this specific circumstance. Somewhere between Martin's feelings and Incognito's actions, there is a line. Morality determines what actions cross it and forms a law. That law then works inversely to shape conduct to conform to morality.

If you think Incognito was a bully, then maybe he should not be punished at all because even after several prior incidents of alleged bullying, the league still has not devised a policy to define and punish the behavior. If anti-bullying legislation is created, Incognito still gets off because laws and policies can't apply retroactively. But, sometimes foregoing inadequate punishment fuels change. The moment Ravi was punished, the case lost muster. The debate virtually ended with his conviction. If prosecutors stop twisting and turning the law to charge at any cost, then yes a wrongdoer will go free, but public pressure will shift to legislators and league owners to devise laws that fit the circumstances. These laws will then punish future offenders. Cries for blood won't end with fly by night burnings at the stake, they will become vehicles for change in our legal system and methods of deterrence, so that when justice is served, it is served justly.