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.
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.