The prosecution is in the midst of presenting its case in Dharun Ravi’s trial for invasion of privacy of his Rutgers University roommate Tyler Clementi. Clementi committed suicide shortly after discovering that Ravi spied on him during a sexual encounter. Some observers see Ravi’s trial as critical to defining legal consequences for cyberbullying. Ravi is not facing criminal charges connected to Clementi’s death, but his suicide hangs over these proceedings as the tragic unintended consequence of Ravi’s spying. The video coverage of the trial is sad, a sobering demonstration of immature callousness and its consequences.
The New Yorker’s February 6 edition has a long story about the Fall 2010 suicide of Rutgers University student Tyler Clementi that dispels some of the misconceptions that sprouted in its wake. The trial of Clementi’s roommate Dharun Ravi began last week and is expected to last about a month. Ravi is charged with 15 counts including invasion of privacy, hindering prosecution, and bias intimidation, which carries a maximum prison sentence of 10 years. Ravi rejected a plea offer that would have imposed a maximum sentence of five years. My conclusion is that Ravi is an insensitive young man who did inexcusable, casually cruel things, but whose attitudes and actions still place him within the fat part of the bell curve for 16-22 year old boys and men. It is also difficult to explain Clementi’s suicide in light of his behavior and demeanor in the days following the events and hours before he leaped from the George Washington Bridge. After reading the article I know more and understand less about whole story.
This post’s title comes from a state prosecutor’s description of teenagers have naked pictures of boyfriends or girlfriends on their cell phones. It is “an advertisement that you’re sexually active to a degree that gives you status. It’s an electronic hickey.” The prosecutor is quoted in A Girl’s Nude Photo, and Altered Lives, an article from Sunday’s New York Times that discusses sexting. The article focuses on Margarite, an 8th grade girl who send her then-boyfriend Isaiah a naked picture of herself. Isaiah and Margarite broke up a few weeks later, and he forwarded the picture to a girl identified in the article only as Margarite’s “former friend”–“tough and strong-willed, determined to stand out as well as fit in.” Former Friend then forwarded the photo to her contact list with this message: “Ho Alert! If you think this girl is a whore, then text this to all your friends.” The quality of Margarite’s life deteriorated from there. The photo spread throughout Margarite’s school, a school to which she transferred, and beyond. School officials and police learned of the photo’s viral distribution and charged Isaiah and Former Friend with disseminating child pornography. The prosecutor agreed to reduce and dismiss the charges if the three charged created public service messages about the dangers of sexting and met with Margarite to discuss what happened. The article presents a broad view of the issues, noting that sexting is not illegal–the AARP (look it up, kids) has written of it approvingly–, and that the media presents teenagers with conflicting messages, wagging its finger about its dangers while winking at it through, for example, Megan Fox’s 2010 Superbowl ad for Motorola.
The Missouri jury that acquitted Elizabeth Thrasher on a felony charge of cyberbullying said the prosecutors proved every element of the crime, save one: proof of the victim’s emotional harm. The victim testified that after Thrasher posted the victim’s photos, cell phone number, and other personal information on a Craigslist “casual encounters” site she received phone calls, texts, and photos from men who seen the posting, and that one man came to the restaurant where she worked. The victim also testified that she feared being raped and killed. This first-person testimony was not enough for the jury; they wanted third-party testimony to corroborate the victim’s emotional distress. The prosecutors did not think their case required more testimony on the victim’s harm: “We didn’t feel it was necessary to go on any further to prove what comes out of her mouth based on the assumption that most people would be distressed to have their personal information put on Craigslist.”
Missouri’s first post-Megan Meier cyberbullying prosecution ended in the defendant’s acquittal. Elizabeth Thrasher was charged with harassment after a spat with her ex-husband’s girlfriend’s teenage daughter led her to post personal information and photos culled from the daughter’s MySpace page on a Craigslist sex-wanted site. The daughter kicked off the spat by calling Thrasher a “fat fucking bitch” in an email. The Missouri law was enacted after the much-publicized suicide of 13-year old Megan Meier, after Meier was bullied by a neighborhood mother acting through a fictitious MySpace proxy. (I need diagrams to understand these relationships.) Following the acquittal the state prosecutor said “I think there are some difficulties with the statute that were brought to our attention.” If convicted Thrasher faced up to four years imprisonment.
On the Friday the Massachusetts house passed anti-bullying legislation by unanimous vote. The state senate passed similar legislation the week before. The governor has said he will sign the bill after the senate and house versions are reconciled. Proponents of legislative remedies to bullying praise the house’s version “because it requires school officials–bus drivers, cafeteria workers, teachers, and others–to report bullying to a school’s principal.” The house version, H4567, defines bullying in part as ““the repeated use by a perpetrator of a written, verbal, or electronic expression, or physical act or gesture . . . directed at a victim that causes physical or emotional harm or damage to the victim’s property; places the victim in reasonable fear or harm to himself or of damage to his property; [or] creates a hostile environment at school.’’ The Globe article linked above reports that principals [and perhaps others?} would be required to report to police any bullying that constitutes a criminal act. What line must be crossed for bullying to become criminal? The article does not say and I’ve not yet located the text of the bill. The house rejected an amendment that would have required school employees who do not report bullying be fined. “Some lawmakers said the lack of such of fine made the proposed law toothless; while others said that any official who does not report an incident would be subject to being fired.”
The article does not say whether anyone in the Massachusetts house or senate considered the First Amendment implications of their bills. “Written, verbal, or electronic expression . . . that causes . . . emotional harm” covers a lot of constitutionally-protected speech. I’m not optimistic that this bill will reduce bullying or that it will survive the inevitable First Amendment challenge.