The Rutgers Atrocity

Some years ago a friend of mind walked off a plane at the Aberdeen airport and was arrested by a police officer. He was taken to an office in town, where he was told he would be charged. Waiting for him was a room full of people with party hats, bundles of balloons and a birthday cake. It was a practical joke, arranged by a friend who was a lawyer. One moral of this story is: beware of making friends with lawyers.

My friend tells this story with relish. That's what happens when a practical joke succeeds. Suppose, however, that my friend had not guessed the nature of the joke from the start. Suppose, seized with fear, he had a heart attack and died en route to his party. The perpetrators would have been, I suspect, in legal peril. They would certainly had been in moral peril. Practical jokes are a perilous business.

I present that story because the most charitable view of what happened at Rutgers that I can even imagine is that it was a practical joke gone awry. I am not saying that that is the right way to view it. I am saying the most generous interpretation possible provides no moral absolution and shouldn't constitute a legal defense. In case you don't know, here is the story from the Daily Caller:

Last week in New Jersey, Tyler Clementi, a freshman at Rutgers University jumped off the George Washington Bridge after his roommate broadcast a live feed of him engaging in sexual acts with another man. The roommate, Dharun Ravi and a friend Molly Wei, both freshmen, are being charged with invasion of privacy. But many people are calling for the prosecutor to charge them with a hate crime, which would double the maximum possible sentence.

You can find another telling of the tragic tale at the Washington Post.

There are two questions here, and both need to be asked. To ask the first one you have to leave aside the sex of the person with whom Mr. Clementi was involved. What should we think of people who secretly filmed two legal adults having sexual relations in a bedroom and then broadcast it live over the internet? We should think that this was an utterly atrocious invasion of privacy. We should think it is a criminal act. Apparently it is under New Jersey law.

Looking at it this way, we can see that this sort of thing threatens everyone's privacy. To invade someone's privacy in this way, let alone to broadcast it, looks to me like the equivalent of rape. In these times, we should all take that seriously.

The second question is whether it was a hate crime. I gather that this would double the possible penalties in the case. I have written in defense of hate crimes legislation at this blog. My fellow conservatives have many objections to such laws, but none of them are germane here. It is irrelevant what opinions Mr. Ravi or Ms. Wei might have about homosexuality. What is relevant is what opinions they had about Mr. Clementi and what they were secretly viewing. Here is something Mr. Ravi twittered.

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.

Mr. Ravi thought that the sex of his roommate's partner made his roommate more vulnerable, easier to victimize. That is precisely the sort of thing one can take into account when judging the severity of a crime. It is the sort of thing that is design to protect those persons who need the most protection. In these times, any of us could end up in that category.

What happened to Mr. Clementi was an atrocity. I expect that Mr. Ravi and Ms. Wei thought they were only playing a harmless joke. They were nonetheless responsible for their actions, and holding people responsible is the whole point of criminal law.

Comments

[Curtis Gale Weeks]

I'd recommend reading Auden's essay "The Joker in the Pack", from his collection of essays The Dyer's Hand. It is principally an essay on Iago & the play Othello, but he uses the metaphor/reality of practical jokers to make his point.

[KB]

Thanks, Curtis. I like Auden a lot.

[Miranda Flint]

I agree that what happened here was despicable and a violation of privacy. But
I do not like hate crimes legislation, because it seems to place some minorities above others. There should not be harsher punishment for someone who torments a gay man than there is for someone who torments a straight man in the same way.
I don't doubt that people use homosexuality as a reason to bully. But that sort of bullying can and does happen to people of all colors and orientation. Consider, for instance, the case of Phoebe Prince.

Prince and Clementi should be entitled to the same amount of protection. Giving one more protection than the other is discrimination.

[William]

I agree with Miranda on the hate crimes aspect and feel that law should determine what a criminal act is. It is (or should be) within the judge's responsibilities to determine how extenuating or mitigating circumstances, including motive, should balance in determining sentencing.

[Bill Fleming]

So William, are you saying that judges should legislate against hate crimes "from the bench"
depending on whether or not they share the same prejudices as the perpetrators?

[William]

No Bill, what I'm saying is that by legislating such things as "hate crimes" and mandatory minimums, the legislative branch restricts judges from actually judging. The proper role of the legislature is to pass laws that define what crimes are and the judicial role is to determine actual guilt based on the law and then sentencing based upon the specifics determined during a trial.

Hate crimes by definition predetermine motive, which IMHO is properly determined during trial, not by a DA.

Hate crimes and mandatory minimums remove the ability of a judge to base their rulings and sentencing on the specifics of individual cases determined during trial.

A good judge will apply the law as written, without regard to personal prejudice.

[acsenray]

These objections to hate crimes legislation show a failure to understand what they are about. Hate crimes are not targeted at "place[s] some minorities above others." What makes it a hate crime is its terroristic effect. It becomes a hate crime because it serves as a message to other members of the same group -- which doesn't necessarily have to be a "minority" in terms of numbers, but merely one that is generally powerless in society and subject to social intimidation -- that they should live in fear of retribution if they try to cross some implied social line. Burning a cross might not constitute any kind of crime at all. Perhaps if the burner does it on his own property. That's because the crux of the crime is not the burning of the cross, but the threat it sends, the intimidation, the message that certain people (who know who they are) are warned to stay in their places. Chalking it up to "causing a fire hazard" or "vandalism" entirely misses the point of the act and fails to act as a deterrent. Someone who "torments a straight man in the same way" may be perpetrating a hate crime if it can be reasonably argued that a motive behind the tormenting is to ensure other straight men will receive an intimidating message and that straight men as a class are particularly vulnerable to such intimidation. Because of the fact on the ground, it is unlikely that this will be the case, but that does not constitute discrimination against straight men. And intent or motive is a factor in defining many crimes. It's the difference between intentional manslaughter and negligent manslaughter. It's the difference between manslaughter and murder. We don't put before the jury the simple charge of "playing a role in causing a person's death" and then leave it up to the judge to factor into his consideration sentencing whether it was a complete accident, a crime of passion, or a contract killing between rival mobs.

Considering motive, intent, as well as the intended social impact of an act is perfectly justifiable in defining the scope of a crime.

[William]

acsenry,

"Considering motive, intent, as well as the intended social impact of an act is perfectly justifiable in defining the scope of a crime."

I don't necessarily disagree with that statement, but continue to disagree that it merits a separate charge as a "hate crime". Defining the scope of a crime in charging an individual with a crime and presenting that in evidence during trial is the jurisdiction of the prosecutor, however all of that needs to be proven in court and considered by a judge based upon the specifics of the trial.

I still fail to see how there is a need to create a separate charge of "hate crime". The effect of the charge does indeed create (to me) a barrier to achieving the ideal of "equality under the law. If we as a society continue to view individuals as members of a group first and as individuals second, I don't see how we can ever move forward collectively. I view hate crime laws as another barrier to achieving equality, not a means toward it.

[KB]

Great thread! Let me weigh in. If we punish armed robbery more severely than unarmed robbery, it's not the victims of the one are more deserving than the victims of the other. It is because we are trying to target a specific criminal behavior. If we punish hate crimes more severely than other crimes, it is not because (or shouldn't be because) the victims are special. It's because the criminals are special.

Predators of every stripe and every species choose their victims according to certain cues. One of them, in the case of human predators, is the opinion that certain categories of persons don't enjoy the protection of the larger society. I think it reasonable to design our laws to correct that opinion.

I am largely in agreement with acsenray on this question. I think that such laws can be designed to protect everyone. Imagine a case similar to the above case where two homosexual political activists filmed a Mormon roommate masturbating and put that out on the net. They email lots of friends that they have exposed a homophobe. Would that be a hate crime? I think so.

Protecting the most vulnerable is one of the functions of criminal law. "The vulnerable" is a special class worth special protection. We may all find ourselves in that class at bad moments.

[Miranda Flint]

I disagree for several reasons. The first is that almost every victim is vulnerable, yet not every every crime in which the victim is vulnerable is prosecuted as a hate crime.

Let's use armed robbery as an example again. An unarmed clerk is vulnerable to the attack of an armed assailant. Yet the armed robber is not generally charged with a hate crime. Hate crimes legislation seems to aim to protect only certain favored kinds of vulnerability. And that seems to me to be a bit suspect.

Also, if, indeed, we may all find ourselves in that class, then I have to ask, again, why we need a special class at all.

Your example of unarmed vs armed robbery makes sense, but that is because the action is different. One is an act that involves a risk of death, one is an act that not. It is hard to see a difference in action between hate crimes and non-hate crimes. Instead, it looks rather like we are meant to prosecute people for a thought crime - or at least to make their punishments harsher based on what we think they think.

I think that instead, legislation should apply across the board. The Matthew Shephard and James Byrd Junior Act protects people from the following:

"The incidence of violence motivated by the actual or
perceived race, color, religion, national origin, gender, sexual
orientation, gender identity, or disability of the victim."

But is violence against someone who is vulnerable or disliked because of his or her appearance, weight or past relationships really so much better? Or is a crime committed out of jealousy less of a crime than the incidents mentioned above?

The problem with hate crimes legislation is that it is too narrow in its scope. It gives extra protection to favored minorities, but overlooks people who are just as vulnerable. We all may find ourselves in the "vulnerable" class. But we will not all find ourselves protected by hate crimes legislation.