Gap Between Outrage and Law

Widespread outrage followed the September suicide of Tyler Clementi, the Rutgers student who killed himself after his roommate and another surreptitiously, via webcam, viewed Clementi kissing another man.  Cries to punish followed outrage, and New Jersey prosecutors charged Dharun Ravi, the roommate, and Ravi’s friend Molly Wei with invasion of privacy and transmitting a sexual encounter on the Internet.  Clementi’s suicide was one of a spate of suicides by gay teenagers in recent months, and many called for Ravi and Wei also to be prosecuted for anti-gay hate crimes.  Peeping via web cam and computer on two men making out and sharing and laughing about it with others must be a crime.  Right?

Not necessarily, as discussed in Rutgers suicide case poses test for NJ privacy law.  Does Ravi’s Twitter message–Roommate asked for the room till midnight. I went into molly’s room and turned on my webcam. I saw him making out with a dude. Yay–show the anti-gay bias necessary to prove beyond a reasonable doubt that a crime was committed because of the victim’s protected-class status?  The message contains no pejorative terms, there’s no independent evidence of Ravi’s or Wei’s animus towards gays or lesbians, and their family and friends will testify that both had gay friends.  Making out with a dude was, as far as we know, a statement of fact.  Titillation over a roommate’s romantic same-sex encounter is a long way from a hate crime.

And for their to be a hate crime, there first must be a crime.  Here are the relevant provisions of New Jersey’s criminal invasion of privacy statute (emphasis added):

1. a. An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, and under circumstances in which a reasonable person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact, he observes another person without that person’s consent and under circumstances in which a reasonable person would not expect to be observed.

1.b. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person’s consent and under circumstances in which a reasonable person would not expect to be observed.

The incident’s reported facts do not support a charge of third degree invasion of privacy.  Assuming the webcam video was saved and not just streamed, Ravi and Wei observed Clementi doing no more than kissing another man.    Fourth degree invasion of privacy may fit the facts, if it was reasonable to believe the encounter would result in exposed “intimate parts” or actual sexual penetration or sexual contact.  Proving that on the reported facts beyond a reasonable doubt–no nudity, not even partial nudity, just kissing–will be a challenge.

Put simply, New Jersey has a weak criminal case against Ravi and Wei–and that assumes their culpability is equal.  Ravi used Wei’s computer, but appears to have been only a bystander, not an actor.  Remember the failed prosecution of Lori Drew for her role in Megan Meier’s suicide–outrage without a crime is not an unusual outcome in controversial Internet-related activities.

Ghosts?

Should the law require the seller of a house to disclose that a murder or suicide occurred there?  The Consumerist blog posed this question a few weeks ago, noting the Massachusetts law (G.L. ch. 93 §114) does not require such disclosure:

The fact or suspicion that real property may be or is psychologically impacted shall not be deemed to be a material fact required to be disclosed in a real estate transaction. “Psychologically impacted” shall mean an impact being the result of facts or suspicions including, but not limited to, the following:

(a) that an occupant of real property is now or has been suspected to be infected with the Human Immunodeficiency Virus or with Acquired Immune Deficiency Syndrome or any other disease which reasonable medical evidence suggests to be highly unlikely to be transmitted through the occupying of a dwelling;

(b) that the real property was the site of a felony, suicide or homicide; and

(c) that the real property has been the site of an alleged parapsychological or supernatural phenomenon.

No cause of action shall arise or be maintained against a seller or lessor of real property or a real estate broker or salesman, by statute or at common law, for failure to disclose to a buyer or tenant that the real property is or was psychologically impacted.

Which does not mean the seller can lie about it:

Notwithstanding the foregoing, the provisions of this section shall not authorize a seller, lessor or real estate broker or salesman to make a misrepresentation of fact or false statement.

Should this be the law?  Would a house’s history of murder or suicide affect how much you would be willing to pay for it?