13 ‘Legal’ Reasons Why

Aiman R. Khan
Trainee Lawyer,
Dhaka Judge Court

If you are into series binge watching, you should by now, come across this much talked about Netflix teen flick. ’13 Reasons Why’ quickly grabbed the attention of majority of Netflix watchers, the high school going kids. The series which is set on a novel by Jay Asher is an oral narrative of a young girl just before she committed suicide. Her death was a result of a series of events that she faced in her school which she recorded in tapes, one by one. These suicide notes in the form of cassettes were posthumously spread across, until it reached the hands of one Clay Jensen. Each of the events was unlawful acts committed by her classmates which Hannah could charge them for, if she wanted. Following are the 13 ‘legal’ reasons why they could’ve been held liable for their acts under UK Law.
1. Justin spreading rumours about Hannah — Defamation
In the beginning of the season, Justin Foley was one of the first to hang out with Hannah on his own. They both clicked and at one point started dating. On one of their meetings, they kissed. The next day, Justin Foley spread rumours in school that they had done more than just kissing. He also passed on an inappropriate picture of Hannah that he secretly snapped with his phone. Here, Hannah could’ve held Justin liable for the offence of defamation by both libel and slander. According to the Defamation Act 2013, in order for a claimant to succeed in a defamation lawsuit, the following must be true:
– The statement in question must be a negative false statement of fact (It was not more than just a kiss)
– The statement in question identifies or refers to the claimant (Justin Foley admitted kissing Hannah Baker)
– The statement in question was published (An inappropriate picture of Hannah was spread across the class)
There are two forms of defamation, libel and slander. Libel is published defamation, while slander covers defamatory statements in transient forms, such as speeches. Forms of UK defamation include:
– Print ;
– Broadcast (Broadcasting Act of 1990);
– Film or Videos;
– Internet; and
– Statements made during public performances of a play (Theaters Act of 1968).[1] Under UK law, the important issue to consider is not how the defamatory statement makes the victim feel, but the impression it’s likely to make on people reading it. When the inappropriate picture of Hannah was seen by her other classmates, all of them started calling her a ‘slut’ or a prostitute. This alienated her from the rest of her class.
2. Alex voting Hannah to have the ‘best a** in the class’ — Defamation
On Tape 2, there was an incident when another student named Alex Standall was seen voting Hannah having the ‘best a** in the class’. As discussed above, this may also constitute as the offence of defamation by slander. The derogatory comments made towards Hannah not only hampered her reputation in her school but sparked jealousy in her friend Jessica.
3. Jessica slapping Hannah — Common Assault
On the third tape, Hannah narrated her encounter with Jessica, who slapped her over a row in the cafeteria. Here, Jessica may be liable of Common Assault. An offence of Common Assault is committed when a person either assaults another person or commits a battery. An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force. A battery is committed when a person intentionally and recklessly applies unlawful force to another.
It is a summary offence, which carries a maximum penalty of six months’ imprisonment and/or a fine not exceeding the statutory maximum. However, if the requirements of section 40 of the Criminal Justice Act 1988 are met, then Common Assault can be included as a count on an indictment. Refer to Summary offences and the Crown Court (Criminal Justice Act 1988 sections 40 and 41; Crime and Disorder Act 1998 section 51 and Sch.3 para.6, elsewhere in this guidance).

[To be continue] Where there is a battery the defendant should be charged with ‘assault by beating’. (DPP v Little (1992) 1 All ER 299) [2]

4. Tyler taking photos of Hannah — Voyeurism, Violation of Right to Private Life and Trespassing

Tape 4 was directed towards Tyler Down, the school photographer who allegedly took pictures of Hannah in her room. This peeping tom waited for the perfect moment when he could snap one of Hannah and Courtney Crimson in an inappropriate position. Here, Tyler can be charged with Voyeurism. In UK, non consensual voyeurism is considered as a sex crime. In the English case of R v Turner (2006), the manager of a sports centre filmed four women taking showers. There was no indication that the footage had been shown to anyone else or distributed in any way. The defendant pleaded guilty. The Court of Appeal confirmed a sentence of nine months’ imprisonment to reflect the seriousness of the abuse of trust and the traumatic effect on the victims.

Another English case in 2009, R v Wilkins (2010), resulted in a man who filmed his intercourse with five of his lovers for his own private viewing, being sentenced to imprisonment for eight months and ordered to sign the Sex Offenders Register, where his name would remain for ten years. In a more recent English case in 2013, Mark Lancaster was found guilty and sentenced for voyeurism, after having tricked an 18-year-old student into travelling to a rented flat in Milton Keynes, where he filmed her with four secret cameras dressing up as a schoolgirl and posing for photographs before he had sex with her.[3]

Also, Under s. 67 (3) of the Sexual Offences Act 2003, A person commits an offence if-(a) he records another person (B) doing a private act,

(b) he does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at an image of B doing the act, and

(c) he knows that B does not consent to his recording the act with that intention.

Invasion of her privacy: Article 8 of the Human Rights Act 1998 states Right to Private and Family life. It gives also gives someone their right to control the dissemination of information about one’s private life, including photographs taken covertly. Here, Tyler may have breached Article 8 in taking pictures of Hannah without her consent.

Trespassing her premises: When Tyler took pictures of Hannah, he was inside Hannah’s premises without her authority. Here, he may have committed the offence of Trespass. Trespass is defined as the unauthorised interference with the possession of a home. Part V Criminal Justice and Public Order Act 1994 (CJPOA) s 61-80 conferred powers on the police and created offences in connection with various forms of trespass. The Criminal Law Act 1977 sets out offences relating to entering property without lawful authority and remaining there. The provisions are contained within two sections of that Act, namely s 6 and s 7.

5. Courtney spreading rumours about Hannah — Defamation

In the fifth tape, Hannah narrated how Courtney reacted when the entire school talked about Tyler’s picture of them. To save herself from it, Courtney herself started spreading rumours about Hannah possessing sex toys in her bedroom. This added weight to the previous false statement of Hannah being a prostitute. Here, Courtney may be charged of slander for the false statement she spread around the school about Hannah.

6. Marcus touching Hannah’s thighs — Unlawful Sexual Touch

After getting matched up with Hannah through a Valentine’s Day survey, Marcus tried to make a move on her in a booth at Rosie’s Diner. She had to push him out of the booth and onto the floor to get him to stop. Marcus may be liable for unlawful sexual touch. In England and Wales it is an offence to touch someone else with sexual intent if the other person has not consented to such touching and if the person carrying out the offence does not reasonably believe that the other person consented. The Sexual Offences (Northern Ireland) Order 2008 covers any kind of intentional sexual touching of somebody else without their consent. It includes, touching any part of their body, clothed or unclothed, either with a part of the body or with an object.

7. Zach stealing the Note of Encouragement for Hannah — Theft

Zach Dempsey, a classmate of Hannah, stole the notes of encouragement left for her by her classmates, as told by Hannah in her seventh tape. Zach can be charged with the offence of Theft for appropriating property belonging to another. The offence of theft is set out in s.1(1) Theft Act 1968 which provides that a person is guilty of theft if they dishonestly appropriate property belonging to another with the intention to permanently deprive the other of it. Ss 2-6 of the Theft Act 1968 provide definitions of each of the elements of theft. S. 7 sets out the maximum penalty for theft of 7 years.

8. Ryan stealing and publishing Hannah’s poem — Theft and Defamation

Hannah met Ryan Shaver in a poetry class and really trusted him; that is, until he stole a very personal poem of Hannah’s and published it, leading to more ridicule for Hannah. As mentioned earlier, Ryan can be held for two offences, Theft for stealing the poem and Defamation for publishing it to make fun of her.

9. Justin not stopping Bryce — Secondary Liability and Aiding and Abetting to Rape

The ninth tape was where Hannah describes the horrific event of Jessica getting raped by Bryce Walker in front of her own eyes. Jessica’s boyfriend Justin Foley allowed the whole thing to happen. Justin here may be liable of the offence of Secondary liability. In the case of secondary liability there is no need for any agreement between D and P that P will go on to commit an offence. The secondary party is himself guilty of the offence committed by the principal and liable to the same penalties. It is the principal’s offence for which D is liable. The requirement of knowledge is satisfied if D knows or believes that:

i. P is committing or will commit the conduct element of the offence;

ii. P is doing or will do so in the circumstances and with the consequences, proof of which is required for conviction of the offence.[4]

Section 7 (2) of The Sexual Offences (Amendment) Act 1976 includes ‘aiding, abetting, counselling and procuring attempted rape’ under the definition of the offence of rape. Here, it can be rightly said that Justin failing to stop Bryce raping Jessica may amount to aiding and abetting to rape.

10. Bryce taking unlawful advantage of Jessica after she passed out — Rape

Bryce took advantage of Jessica passing out after heavily drinking and had sexual intercourse with her without her consent while she was unconscious at a party. According to the Sexual Offences Act 2003, a person (A) commits an offence if-

(a) He intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.[5]

Moreover, since Jessica was drunk, she did not have the capacity to either consent or refuse. This makes it the offence of ‘Statutory Rape’. The criminal offense of statutory rape is committed when an adult sexually penetrates a person who, under the law in incapable of consenting to sex according to US Law.

11. Sheri knocking off the Stop Sign and not doing anything about it — Subjective Recklessness and Constructive Manslaughter

After a party, Sheri offered Hannah a ride home, but knocked down a stop sign with her car. Sheri refused to report the incident, and shortly after, there was a fatal accident at the stop sign. Here, Sheri may be liable of Subjective Recklessness. The test was laid down in R v Cunningham [1957] were reckless was seen as subjective, i.e the defendant knows the risk, is willing to take it and takes it deliberately. The question that must be asked is “was the risk in the defendant’s mind at the time the crime was committed?”[6]

Under s.20 of the Offences Against a Person Act (OAPA) 1861, “whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm on any other person, either with or without a weapon or instrument, shall be guilty of a misdemeanour”. The defendant must have the intention or be reckless as to the causing of some harm. There is no need for the prosecution to establish that they intended or was reckless as to causing serious harm: Subjective recklessness applies (the defendant must foresee the risk of causing some harm): R v Parmenter [7]

The accident caused one of their classmates, Jeff to die on spot. Here, Sheri may also be liable for Constructive Manslaughter. Constructive manslaughter is also referred to as unlawful act manslaughter. Constructive manslaughter is a form of involuntary manslaughter in that an unlawful killing has taken place where the defendant lacks the mens rea of murder. There are two types of involuntary manslaughter: constructive manslaughter exists where the defendant commits an unlawful dangerous act which results in death; where the defendant commits a lawful act which results in death this may amount to gross negligence manslaughter.[8] Some case examples are, R v Lamb [9], R v Scarlett [10], R v Arobekieke [11]

According to the principle laid down in R v Larkin [12] and R v Mitchell [13], the unlawful act need not be directed at the victim. Hence, even though Sheri did not intend to kill Jeff, she may be liable for Constructive Manslaughter.

12. Bryce’ sexual intercourse with Hannah without her consent — Rape

Bryce Walker was heard to commit the offence of Rape once more in the 12th tape, but this time the victim was Hannah Baker herself. One night at a party, Bryce Walker started to touch Hannah in a hot tub, and he proceeded to rape her. In this situation, Hannah was not drunk but didn’t even consent to it. As mentioned previously, the offence of rape may be applied here. In UK Law, if a person is guilty of rape, the maximum punishment is life imprisonment.

13. Mr Porter not responding to Hannah’s cry for help — Negligence and Duty of Care

Mr. Porter, the school counsellor was the last person Hannah talked to before she committed suicide. He had the responsibility of listening to the problems of the students and provide counselling to help them recover. Such a relationship between the counsellor and the students creates a legal duty of care. Duty of care refers to the circumstances and relationships which the law recognises as giving rise to a legal duty to take care. But when Hannah tried to tell him the problems and incidents happened to her, Mr. Porter didn’t pay heed to them. A failure to take such care can result in the defendant being liable to pay damages to a party who is injured or suffers loss as a result of their breach of duty of care.[14] The case of Caparo v Dickman [15] laid down three elements needed to establish this duty of care. They are:

1. That harm was reasonably foreseeable (Seeing the troubled Hannah, it was inevitable that she might do something like that)

2. That there was a relationship of proximity (Student-Counsellor relationship)

3. That it is fair, just and reasonable to impose a duty of care. (The Counsellor’s responsibility was to advice the students and counselling any student having mental issues)

The series 13 Reasons Why was created for a cause. It depicted the actual circumstances a victim of bullying goes through. Bullying in school is a common sight in the United States which leaves many victims with permanent psychiatric loss. It affects them mentally, hence why some of them take drastic actions to get over with it. Suicide can’t ever be the answer to it. Hannah Baker could if she wanted to, seek refuge of the Law and set an example for all those who commit the offence of bullying, all over the world.

[1] Kelly/Warner, ‘UK Defamation: Legal Overview’ [available on http://kellywarnerlaw.com/uk-defamation-laws/] [2] CPS, ‘Offences against the Person, incorporating the Changing Standard’ [available on: http://www.cps.gov.uk/legal/l_to_o/offences_against_the_person/#a07] [3] Wikipedia, ‘Voyeurism’ [available on: https://en.wikipedia.org/wiki/Voyeurism] [4] Perry D (2011), ‘UK: Secondary Liability in the Criminal Law’ [available on http://www.mondaq.com/x/136506/Crime/Secondary+Liability+In+The+Criminal+Law] [5] Legislation.gov.uk, ‘Sexual Offence Act 2003’ [available on http://www.legislation.gov.uk/ukpga/2003/42/section/1] [6] Law Teacher, ‘Mens Rea Lecture #1’ [available on https://www.lawteacher.net/lecture-notes/criminal-law/mens-rea-lecture.php] [7] [1991] 94 Cr App R 193

[8] E-Law Resources, ‘Constructive Manslaughter’ [available on http://e-lawresources.co.uk/Constructive-manslaughter.php] [9] [1967] 2 QB 981

[10] [1993] 98 Cr App 290

[11] [1988] Crim LR 314.] [12] (1942) 29 Cr App R 18

[13] [1983] QB 741

[14] E- law Resources, ‘Negligence- duty of care’ [available on http://e-lawresources.co.uk/Duty-of-care.php] [15] [1990] 2 AC 605


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