'Sometimes, the laws don’t adequately address the situation.'


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. Ari will be writing biweekly posts on law and various LGBT issues.

  That understatement is from Middlesex County, New Jersey prosecutor Bruce Kaplan, the lawyer of the hour who finds his hands tied. He has to find a way to punish those responsible for the death of young Tyler Clementi, the Rutgers student who recently took his own life after his roommate filmed him in a private sexual act and posted it on Twitter. The problem is that current New Jersey law inadequately encompasses this crime. There is "invasion of privacy," but that carries a five year sentence at most. There is sentence enhancement under New Jersey's hate crime law, but such laws are dicey and it minimizes what actually happened here. There is a possible manslaughter charge (in New Jersey, it's a type of reckless homicide), but that will be hard to prove because it would require Mr. Kaplan prove Tyler's roommate's knew what would happen. Mr. Kaplan is right and that realization is gut-wrenching. I would like to propose a way to change that.

Tyler's story is not only heartbreaking, it is a clarion call -- a call for us to stop tolerating anti-gay bullying and a call for a sea change in how we think about criminal culpability.

Continue reading "Sometimes, the laws don't adequately address the situation" AFTER THE JUMP.


Traditionally, manslaughter convictions require knowledge of consequences, or to closely track the language of New Jersey's reckless homicide statute, manslaughter requires a "conscious disregard of a substantial and unjustifiable risk" that will result from one's conduct. To make disregarding risk "conscious", the defendant has to be aware of it. But it is not at all clear what Tyler's roommate knew. Nor is it clear what we can prove they knew. But, if we criminalized indifference to risks, rather than awareness of them, we could more adequately capture this crime.

I admit, this may be like tilting at windmills. The evolution of what lawyers call mens rea, or "guilty mind", has been toward making actual awareness an element of any crime. There is a certain logical fealty to that convention; after all, how can you be guilty of the consequences of your conduct if you were not aware of the risks posed by your conduct. As evidence of this convention, most jurisdictions have gotten rid of their negligent homicide statutes, which criminalizes when you should have (but weren't) aware of the substantial risks of your conduct. So, what I argue would represent a sea change, indeed. But given the changing landscape of crimes; the greater knowledge we have about the connection between bullying, depression and suicide; and the increasing prevalence of anti-bullying in the public consciousness, we need a way to capture bad behavior that the criminal law never had to deal with before. That is precisely when reform is necessary.

First, allow me to explain why I think the current law -- sentence enhancement under New Jersey's hate crime law and traditional manslaughter -- is inadequate in this case.

Hate crime laws are inadequate. Opposing hate crime laws is (one of my) gay heresies, but even though Tyler's death moved me to question my heresy, I stand by it nonetheless.  I have three reasons:

(1) Hate crime laws are morally dicey because they criminalize thoughts rather than behavior. But that is a traditional objection that is itself morally dicey; the real moral problem is treating bigotry like any other random crime. Perhaps, but a string of murdered wealthy straight men is no less an affront to ordered liberty than a string of murdered gay men.

(2) To describe what happened to Tyler as a hate crime minimizes his death. To be guilty of a hate crime, a victim has to be targeted because of his membership in a particular group. The victim doesn't have to die. To describe the crime as a hate crime makes Tyler's death irrelevant and is, therefore, emotionally unsatisfying and legally under-inclusive.

(3) Oddly, the law is also too broad. The same criminally callous behavior that victimized Tyler could have victimized a young girl just the same, in which case it would not be a hate crime. Imagine a straight college student videotapes a young girl having sex with a boy and blasts it over the Internet. The girl, deeply religious, is devastated, distraught with guilt and terrified that her parents, who raised her on their church's strong distaste for premarital sex, will disown her. She doesn't know what to do, sees herself as a sinner and lives in fear of her parents' reaction. If she committed suicide, a hate crime law would not cover her death because she was not a member of a protected group.

But what happened to the young girl is still the kind of behavior we want to punish. It's bullying just the same, capable of the same lasting emotional and physical side effects.

What about manslaughter? As noted earlier, manslaughter requires causing a death by acting with knowledge of a substantial risk of your behavior and consciously disregarding that risk. Causation is not necessarily our biggest problem. The way Tyler, Raymond Chase, Justin Aaberg, Billy Lucas, Asher Brown and Seth Walsh all took their own lives after being bullied makes proving causation possible.

Knowledge is the bigger problem. It is not at all clear we can prove such knowledge. Maybe Tyler's roommate knew that Tyler had been bullied in the past, and maybe not. Maybe his roommate knew that Tyler was emotionally fragile as a result, and maybe not. Whatever he did know will be difficult to prove in this case.

Therefore, I argue that we need to change the way we think about culpability. The bad conduct here was not ignoring a risk, it was failing to perceive that risk in the first place. Tyler's roommate was criminally callous and it was his very indifference to the possible consequences that makes him culpability from a moral point of view. Why should that not make him culpable from a legal point of view?

Consider this hypothetical, to which I am indebted to Professor S. Pillsbury. Two drivers are speeding down two dark roads: one is a man driving his ill son to the hospital, the other is a teenage boy showing off for his three male passengers. Neither see the red lights and they speed right through, injuring pedestrians in crosswalks. Under a manslaughter theory, they are both equally culpable -- they both killed someone and they consciously disregarded a risk they should have been aware of (negligent homicide). But most of us don't like that outcome. As an alternative to treating them the same because both failed to recognize a risk, think of these options in terms of why they failed to perceive them. The father failed to perceive the risks because he was preoccupied with caring for his sick son; the teenage driver was busy showing off his machismo for his friends. There is a qualitative and morally worthy difference here.

If we criminalized indifference rather than awareness, we could distinguish between the morally worthy choice of the father and the morally blameworthy choice of the teenager. And, we could capture the conduct in this crime. What Tyler's roommate did wrong was being criminally indifferent to what he was doing to Tyler; it should not matter what he knew of the risks.

Indifference theory exists in the criminal law in the form of the misdemeanor-manslaughter rule. In this doctrine, the intent required for a misdemeanor is transferred to the consequences of that misdemeanor. So, if a person ends up dying because a misdemeanor is committed, the intent from the misdemeanor is applied to the death, thus permitting a charge of manslaughter. This applies to a prankster who throws a mattress off an overpass into freeway traffic; if the mattress ends up causing a crash and killing someone, the prankster gets a manslaughter charge even though there is no intent to kill and no knowledge of the natural and probable consequences.

Unfortunately, New Jersey doesn't have a misdemeanor-manslaughter rule; crimes in New Jersey are matters of degree, rather than felonies or misdemeanors.

So, I think we need to change the criminal law. What do you think of indifference theory as a governing principle for culpability?

The current law's awkward inability to address Tyler's situation is part of what makes this situation so emotionally frustrating. We also have no one person to blame. We blame the roommate; we blame school administrators who let bullying continue; we blame religious leaders who fill their parishioners with hate; and we blame political leaders who blithely elevate bigotry to political discourse. We perpetuate a culture in which gay teenagers feel subhuman every time we hear our leaders, our parents and our friends use the word "faggot" or claim homosexual love is somehow less worthy of our recognition or say that gays cannot adopt because we don't trust them as parents. All such discrimination makes bullied gay teens feel isolated and alone. Tyler committed suicide because he felt his life had no value. Bullying will go on unless we stand up and say never again.

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  1. Hate Crime laws do NOT "criminalize thought." They speak to motive. They speak to degree of offensive. Murder in the first degree is different from manslaughter -- though in both cases someone was killed.

    It is still to be sorted out what can or can't be done in this case. But let's not "rush to judgement" and let the perps off with "community service" just yet, OK?


    Posted by: David Ehrenstein | Oct 6, 2010 5:46:17 PM

  2. "what actually happened here"

    How 'bout we wait and find out what actually happened before jumping to conclusions (and encouraging prosecutors to make their careers on hot-button cases)?

    And let's start by sticking to the facts. Clementi was NOT filmed having sex.

    Posted by: BobN | Oct 6, 2010 5:55:24 PM

  3. This may be gay heresy as well, but I don't think Ravi, the roommate, is guilty of manslaughter and should be charged with such. I don't believe any one act of bullying or humiliation can reasonably said to carry the burden of assessing the risk that it might lead the victim to end their own life.

    How many such incidents must result in suicide for that risk to be considered reasonable for a perpetrator to consider? I daresay there are hundreds of thousands of bullying instances for every suicide that stems partly, and mind you only partly, from such instances.

    To say that anyone should consider it likely the victim of even the most vile prank of humiliation might just be so upset they slash their own wrists and bleed out is really rather silly, and certainly such a concept should never be codified into criminal law.

    Posted by: Zlick | Oct 6, 2010 5:56:56 PM

  4. If there's a case to make for a clarion call against bullying, it's the suicides of 11yos and 15yos where bullying is CLEARLY a cause.

    I think the reason the Clementi case is getting so much attention is the cyber/internet/privacy angle. Or maybe because there are two "perps" who are identifiable as opposed to the bullies in the other cases who remain nameless (and are kids themselves).

    In any case, we really should wait.

    Posted by: BobN | Oct 6, 2010 6:01:59 PM

  5. I have to agree with other commentators. I think what happened is tragic and needs to spark a real discussion about how America is treating gay kids (and for the record I can tell you that the Rutgers community has mobilized)BUT I don't think this can be called a hate crime. Someone was not murdered or assaulted, someone died and that is different. The real problem is that society say it's ok to harass gay people for being different and that needs to change. It's too bad it didnt soon enough to save Tyler and others.

    Posted by: Alan | Oct 6, 2010 6:10:28 PM

  6. I still think that he can be charged under under federal law for not being 2257 compliant. Since he secretly filmed the sexual encounter I doubt that he has a signed consent form or copies of the participants identification that would verify their age on file for inspection by the FBI. The charge may be to light for the crime but maybe all the little charges can add up to a sufficient penalty. If nothing else, I hope the family sues him in civil court for wrongful death.

    Posted by: GM | Oct 6, 2010 6:12:14 PM

  7. This may be off subject, but it occurred to me that I've heard no reference to (much less identification of) the guy he was filmed kissing. I can see why he'd want to disappear, but that seems to me unless it was a one-night stand---and that seems unlikely, given that Clementi's roommate and conspirator seemed to know exactly when they'd be in the room, suggesting they'd been seeing each other and it disgusted the roommate.

    It could very well be that the guy he was kissing is the best and perhaps only source of information into Clementi's state of mind, yet I've not heard a word about him. If he's a closeted 18 year old, that helps explain things. Still a bit odd---seems like the press would be pursuing him like the monsters they usually are.

    Posted by: Paul R | Oct 6, 2010 6:32:53 PM

  8. Do we even know the age of the guy he was kissing? I know that when I went away to college, far from home, I messed around with tons of guys my first month or so. My ROTC roommates (separate rooms) took a while to figure out what was going on, but no matter what the situation I'm sure the other guy was horribly traumatized by the filming and even more so by the suicide...though as has been noted, he didn't kill himself.

    So I agree with everyone else. We don't know enough about the history here. For all we know, the two guys had known each other 30 minutes or 5 years. The relevance of that isn't enormous aside from its enormous importance to investigation

    Posted by: Paul R | Oct 6, 2010 6:38:14 PM

  9. The more I see of the criminal justice system, the less I like it.

    The persistent pervasiveness of anti-gay bullying would itself provide a defense against criminal prosecution in that most instances of bullying do not result in the victim's death. The case can be made that the students could not reasonably foresee the consequences of their malice and therefore should not be held to the standards of criminality.

    FWIW, I have signed waivers for surgical procedures the risks of which exceed the negative bullying outcome; I expect the surgeons would have been held harmless had I not been here to write this post.

    Clementi's survivors (and that includes all of us) deserve a wrongful death verdict, and it would in my view do less damage to the fabric of law if the District Attorney were to be authorized to help pursue such a verdict.

    The advantage of civil remedy is that Rutgers, too, could be held to account for its negligence in protecting the health and safety of its charges as well as imposing financial penalties on the perpetrators.

    Posted by: Rich | Oct 6, 2010 6:40:44 PM

  10. "If she committed suicide, a hate crime law would not cover her death because she was not a member of a protected group."

    The chief issue with your hypothetical is that she is a member of a protected group, if the act is motivated by animus towards her race, her religion, or her gender. These are all conceivable possibilities. They're not likely, but they are possible. There does exist anti-racial, anti-Christian, and anti-female animus in this society.

    Posted by: JDB | Oct 6, 2010 6:48:01 PM

  11. Hey Avi..I say the speeding father with the ill son was indifferent to others lives, and placed the life of his son above the lives of others, therefore, guilty of manslaughter.
    No we do not need to change the laws based on one tragedy, however henious. There are real crimes this kid is guilty of and those are what he should be punished for.
    It is not gay heresy to be against hate crime legislation...just ignorant!

    Posted by: Bobo | Oct 6, 2010 7:05:04 PM

  12. First of all, your hypothetical regarding the two drivers... I don't know what jurisdiction you actually ever practiced criminal law in, but in many, there are what are called "aggravating" and "mitigating" factors which address the concerns you raise. Once again, a hypothetical presented by you tells me you need to brush up on your criminal law; first you mistake robbery for simple assault with the Simpsons hypo, now this. It makes it difficult for me to take the rest seriously.

    Your "criminal indifference" theory is ludicrous to me, quite frankly. You're trying to draw a correlation between tossing a mattress off an overpass and running red lights with this. It's not working for this lawyer, that's for sure. There are torts in civil law which may cover this type of behavior (wrongful death, perhaps); to subject someone to the criminal justice system because he or she didn't think that his or her roommate would commit suicide over a really tasteless prank simply is not the same thing.

    We already criminalize too much behavior in this country, you're suggesting we criminalize stupidity and inconsideration now. Absolutely not.

    Posted by: DR | Oct 6, 2010 7:07:18 PM

  13. Shut it, DR. You're an awful lawyer, and a forgettable insignificant person.

    Posted by: TANK | Oct 6, 2010 7:11:46 PM

  14. Yeah, Tank, your opinions carry lots of weight around here.

    A most thoughtful and intelligent response, DR. Ignore the mascot troll.

    Posted by: Zlick | Oct 6, 2010 7:40:40 PM

  15. It's more than stupidity and inconsideration to record a sexual encounter of two unwilling and unaware people and post it on the internet for all to see, with a thinly-veiled homophobic bullshit reference associated with it. While the two individuals responsible may not be culpable by the letter of the law for the poor guy's subsequent freakout and suicide, they are absolutely culpable from a civil standpoint. May they both spend the rest of their lives sending half of their gross income to the kid's parents and remembering that they got away with murder.

    Posted by: The Milkman | Oct 6, 2010 7:45:59 PM

  16. We are confusing this case with the other cases of recent suicides that were clearly cases of bullying a gay teen. We really need to be responsible here and not rush to judgement. A gay victim, no matter how tragic, does not automatically make it a hate crime motivated out of gay animus. Was this an American Pie style teenage prank gone horribly and tragically wrong? If it was there needs to be punishment, but I would not want to see the future of these two young people ruined for life. Tyler's life being lost is enough tragedy and we do not need to compound it. There is no way that a reasonable person could have assumed this outcome. The other young man video taped did not jump off a bridge. No way this is manslaughter. Unless these is a smoking gun email, this does not seem to be a hate crime or bullying either - but I am waiting for all of the facts to come out. You should too.

    Posted by: JimSur212 | Oct 6, 2010 7:47:58 PM

  17. "If she committed suicide, a hate crime law would not cover her death because she was not a member of a protected group."

    I think it's important to keep in mind what JDB pointed out. 100% of people are a member of a protected group, because ALL sexual orientations, religions sexes, races, etc. are protected.
    You could decide that in your particular example, she wasn't targeted because of hate toward her identity (maybe she was targeted because she did't pay back $75 to her roommate). But she (like everyone) belongs to plenty of groups which are all protected.
    If someone targets ger because of hatred toward Mormons (and she is a Mormon) then that would be a hate crime.
    If some perpetrator who is a disgruntled Mormon and knows her Mormon parents commits a crime targeting her (such as invading her home to set up cameras in her bedroom for internet broadcast) because she is an atheist, then that would be a hate crime.
    If she is the only white girl in a traditionally black college and she is targeted because of hatred of white people that would be a hate crime.
    If she's a Christian and someone in the doem attacks her because he hates Christians, then that's a hate crime.
    And on and on.

    This idea that hate crimes laws give special status to gay or black people is a myth cooked up by privileged white, straight men like Rush Limbaugh, who surely never had to grow up worrying that they would be targeted by anyone anyway.

    Posted by: gregv | Oct 6, 2010 8:04:56 PM

  18. I strongly agree with the comment by DR. We criminalize way too much behavior in this country. ( Remember, our sex lives used to be criminalized.) The United States has 5% of the world's population, but 25% of its prisoners. Now that can only mean one of two things. Either we have the worst people on the planet living in the US, or this is something seriously wrong with our criminal justice system. We have a fetish for classifying too many offenses as felonies and an obsession with incarceration. The last thing we need is a new law. Personally, I think the Ten Commandments are a few too many.

    Posted by: JimSur212 | Oct 6, 2010 8:08:56 PM

  19. Bullshit. There's no way any reasonable person could have thought that taping a closeted kid making out with a guy and then broadcasting it to God and everybody on the fucking internet along with a stupid snarky homophobic commentary could be anything other than a homophobic act. If the two students responsible are so stupid that they thought such behavior was okay, then they are clearly too stupid to be at Rutgers or any other college. I get that they may not be culpable for manslaughter under the letter of the law. But they are clearly and unequivocally culpable from a civil and moral-ethical standpoint. They deserve for their lives to be not necessarily ruined, but forever tethered to the fact that their actions facilitated the death of an innocent person. May they see that kid's face every time they close their eyes, every time they write a check to his parents, and every time they go through a background check for an apartment, a job, or anything else. We've all been that age. Not one of anyone I know would have done something like that to an innocent human being. When we're over 18, our actions have consequences, whether they'd be featured on American Pie sequels or not.

    Posted by: The Milkman | Oct 6, 2010 8:12:45 PM

  20. To echo David Ehrenstein, hate crimes laws do not criminalize thought any more than a charge of premeditated murder does -- in both cases, it is the deed that is the crime. Using motivation as a basis for a murder charge is no different than using it as a basis for a hate crime charge.

    It might help if you think of hate crimes as a species of terrorism: the victims are targeted because they are perceived to belong to a particular group, and at least one purpose of the crime is to intimidate other members of that group.

    And then I note that your whole exercise hinges on criminalizing thought: how is disregard for possible (or probable) consequences any different conceptually than intent to do harm?

    Posted by: Hunter | Oct 6, 2010 8:24:38 PM

  21. "Hate crime laws are morally dicey because they criminalize thoughts rather than behavior."

    I'm not a lawyer, but that's NOT my understanding of what hate crimes are. More like a typical misunderstanding of what hate crimes are. Thoughts and motivation aren't the same thing. Hate crimes terrorize more than just one victim.

    That said, I agree that hate crime laws may not apply in this case. But, as THE MILKMAN said, what was done to Tyler was--even with the limited information we have--a gross violation of his privacy, quite clearly connected to his sexuality, and far more than a childish prank gone wrong. Reasonable people may not assume that he'd commit suicide, but reasonable people also don't deliberately humiliate another person for sport. What they did should not be normalized as young adults just being young adults. Many young adults would never dream of doing such an insensitive thing to someone who should have been their friend.

    Those behind the humiliation will likely be haunted by this their entire lives, whatever legal punishment they ultimately receive. More important, and more meaningful beyond the unique tragedy of this case, is getting out the message that when you target another for humiliation based on a vulnerability or perceived vulnerability, you risk causing harm far beyond your intentions, harm that you will have to take responsibility for and deal with forever. The same message applies to more direct bullying: when you bully, there can be consequences that will ruin your life, so think twice.

    Posted by: Ernie | Oct 6, 2010 8:35:02 PM

  22. I don't understand why people have so much trouble understanding hate crimes. It seems so clear to me that perpetrating a crime because a person belongs to a protected class is different than perpetrating a crime because there is some dispute between the parties. And it seems obvious to me that a person with such a bias is more dangerous and perhaps more likely to strike again. However I've not heard anything about this case that would make me think it was a hate crime.

    Posted by: Giuseppe | Oct 6, 2010 9:16:32 PM

  23. There is no actual difference between killing or contributing to someone's death with the intent to do it, or without. It makes no ethical difference whatsoever. The only places you'll hear of the relevance of intent, motive, and state of mind are in courtrooms and churches. No respectable ethicist deals with that because of the sound arguments that do away with such ridiculousness. Consequence is all that matters, and how we "feel" has nothing at all to do with an adult ethic.

    That being said, manslaughter and murder charges do seek to police behavior (and thought, actually, because that's all thought is: behavior). The only practical reason for such laws and punishments is to discourage people from thinking certain ways, and behaving certain ways. That's really the only merit to the legal/social distinctions.

    And hate crime laws simply fail to criminalize "thought" (another arbitrary distinction we find only in a courtroom or a church). Hate crimes do punish actions--the crimes in question, not thoughts. Further, if a trait one has confers a higher risk of victimization, hate crime sentencing enhancements seek to level the playing field, as it were, by correcting the imbalance in actual crimes. Enough of this, though. I find the arguments opposing hate crime laws absurd, and the people who propounding them almost universally uncomprehending, whether deliberately or not.

    Anyway, we are demonstrably just as guilty of what we fail to do as what we do--there is simply no moral difference between the two states of affairs. So, I would agree with indifference laws, and also duty to assist laws as well.

    Posted by: TANK | Oct 6, 2010 9:24:24 PM

  24. Seriusly? I'M GAY, I've been bullied because of it for much of my life. Tyler Clementi chose to take his own life because of bullying. His bulliers face 5+ years in prison because he couldn't handle it? Where's the punishment for the kids who bully people for other reasons, or those who don't commit suicide because of it? That's something many of us have lived through that most of us have survived, that yes, is reprehensible, but the fact that it contributed to someone's suicide does not make that death a hate crime or even a felony. This unfortunate young man chose to end his own life. His roommate and his roommate's friend did not make that choice for him, no matter what they may have done.

    Posted by: Greg | Oct 6, 2010 10:09:50 PM

  25. A Call for Hate Crime charges Against
    Ravi and Wei


    Posted by: pauls | Oct 6, 2010 10:16:09 PM

  26. 1 2 »

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