'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. @JimSur212, I'm sure you're aware that a disproportionate number of US prisoners are there for marijuana arrests, followed by other drug arrests. The US consumes far more drugs than any other country and has pursued a war on drugs since Nixon. Get rid of (or at least mitigate) the drug convictions and the prisons would be far less crowded.

    We also high rates of recidivism because many prisoners receive no training, rehabilitation, etc., and so go back to doing exactly what they were doing before prison. Their educations are usually next to nonexistent and they often come from poverty. So yeah, the justice system is criminally flawed (and incredibly racist).

    Posted by: Paul R | Oct 6, 2010 10:17:45 PM

  2. I'd hate to be judged by a jury that had almost any of the posters here. Yes, what Ravi did was horribly mean and emotionally cruel--but we havent heard hardly any of the facts. Was Tyler out to Ravi and it wasnt a big deal to either? Was Ravi just looking to prank his roommate and wouldve done it if Tyler brought a girl to the room? Did Tyler have a history of depression?

    Tyler wasnt murdered--he took his own life. Others in the same situation have not. Youre saying Ravi's charge should be based on what his victim decided to do after the criminal incident. That is a very slippery slope. Tyler supposedly came from a religious home--shouldnt his parents be charged?

    The death of Tyler Clementi and the other boys these past few weeks is terribly sad, but we can't start bending and rewriting laws to fit every occassion. Just because something is terribly immoral and unethical doesnt mean its illegal.

    Posted by: dizzy spins | Oct 6, 2010 10:53:55 PM

  3. I disagree with the whole point of your post.

    You are trying to lay all the blame for Clementi's death on the stupid actions of his roommate and friend. But that isn't the case.

    Yes, SOME of the blame lies with Ravi and Wei. Absolutely. But if Clementi had lived a life free of guilt or harassment until that point, would he have committed suicide? If he had support from his friends and family and his faith (if he had any), would he have committed suicide? I don't think so.

    Our government denies us our rights. Our churches tell us we're going to hell. We are harassed at school, often with the approval of faculty and staff. Congressmen tell us we shouldn't be allowed to have jobs. We can't serve in the military. We are often rejected by our own families and friends. Even if we aren't, we live in fear that we will be. We are the only minority that several states have decided to enact new forms of discrimination against, by popular vote.

    We've all been talking about the rash of suicides in the last month, even before this, in the complete absence of any internet video.

    So, yes, Ravi and Wei should be punished for broadcasting the video. But really all they did was push him over the edge. All of society shares part of the blame. If gays weren't so completely stigmatized, the video would have been mildly embarrassing, not a life ending trauma.

    Posted by: Reverse Polarity | Oct 6, 2010 11:51:26 PM

  4. Yeah, polarity! Society man! Society...see, dick, when you blame society, you blame no one.

    Posted by: TANK | Oct 7, 2010 12:07:15 AM

  5. If the reports are accurate that he was just filmed kissing another man and he was 18 and he killed himself over that, I have a lot less sympathy. Sorry. I think his roommate was a dick, but I dealt with a lot worse when I was a lot younger.

    I have far more empathy for the kids who were 13-15 who killed themselves who didn't have the emotional capacity to deal with this kind of treatment. By the time you're in college, you should be able to say Fuck You to people who do this sort of thing and to actively seek retribution, whether mild (getting your own room in the best dorm on campus) or serious (money). Not to mention that it's Rutgers, not some provincial Christian hellhole school. A friend of mine got a free apartment from our school 20 years ago after his roommate called him a fag. Once. We can't always be victims. Raise hell once you've reached that age.

    I'm not blaming him for his emotional state and think it's a tragedy, but as others have said---we really still don't don't the details here. He may have been depressive, the guy he was kissing may have said he would kill him...god knows.

    Posted by: Dave | Oct 7, 2010 5:23:53 AM

  6. And tiny people may live in your saltsaker, Dave. We jusat don;t know.


    These two were monsters and there's no excuse for what they did. Whetehr Hate Crime charges might apply in this case is something for the legal system to decide. We'll see. as the situation develops. But it's more than worth thinking about. There seems to be a consensus that they could get 5 years for invasion of privacy alone. That well might translate into a few months and/or a suspended sentence with "community service." Maybe additonal charges might be applicable, maybe not. All I want is for these two lower life-forms to suffer for the rest of their lives.

    Posted by: David Ehrenstein | Oct 7, 2010 8:24:23 AM

  7. You're right, "sometimes the laws don't adequately address the situation." And that's the way it should be. You can't make the law punish every wrong. To accomplish that would go too far in the other direction, and criminalize all sorts of behavior that shouldn't be. I cringe everytime some grieving family runs off and gets their own "[Child's name]'s Law" enacted to criminalize whatever particular tragedy happened to them, and I would feel no different about a "Tyler's Law." This "criminal indifference" idea is very very poorly thought out and I'm glad that Avi is not in a position to actually influence any legislator's thinking on criminal law.

    Posted by: Glenn | Oct 7, 2010 10:04:08 AM

  8. "His bulliers face 5+ years in prison because he couldn't handle it?"

    @GREG and others who are blaming the victim: No, they're facing prison time because of what THEY chose to do. If they had not engaged in gross privacy invasion (not once but twice, with references to his sexuality), they would not be subject to legal charges or moral consequences that will probably haunt them the rest of their lives. Tyler chose to commit suicide, but he did not choose to have his privacy invaded. If the judicial system works correctly, they will receive appropriate legal punishment: just because hate crimes or manslaughter charges are being discussed hardly means they'll be convicted of them. Talk about jumping the gun without facts. But the moral responsibility remains theirs. Other students did not bully him. They did. And it should send a message to other bullies: what's a prank to you, may not be a prank to your victim. So unless you want to live with the consequences, DON'T CHOOSE TO BULLY. Then, if someone chooses to commit suicide, their blood won't be on your hands.

    Posted by: Ernie | Oct 7, 2010 10:30:08 AM

  9. What ever happened to "Depraved Indifference" when it comes to manslaughter charges? The roommate clearly acted with depraved indifference to what the outcome would be. And a reasonable person would be able to predict that such a trauma could lead to violent behavior, particularly toward the perpetrator in some personality types, and self destructive behavior in others. Or is New Jersey's manslaughter law so toothless that it doesn't recognize this kind of behavior?

    Posted by: Matt | Oct 7, 2010 10:34:13 AM

  10. @Matt: "Depraved indifference" applies to criminal activity where one disregards the value of human life, not to what any outcome would be. There needs to be some real and viable threat to human life which is disregarded, not ignorance of every imaginable possibility.

    Are you suggesting that we move into a mode of prosecution where we assume all people are just so weak and emotionally vulnerable that any type of behavior qualifies as "depraved indifference" to the value of human life? Do we fall back into victim mode and create laws which assume that each of us are so emotionally fragile that we all might kill ourselves because someone somewhere says something about us which makes us upset?

    While this issue needs to be addressed, it cannot be addressed by demanding victimhood as a status. Absolutely not. I will not accept that we are all so emotionally unstable that we need this protection. It's insulting and demeaning.

    Posted by: DR | Oct 7, 2010 1:33:59 PM

  11. Thank you for those thoughtful comments. I agree with those who are concerned about so-called "jumping the gun". I do not intend to convict anyone before the facts come out. I merely discuss those options that have been floated in the media and pose a few problems with them. That said, you're right; there's a lot we do not know and my sorrow for Tyler should not make me, or any of us, feel vengeful. That's not what the criminal law is all about.

    I respect the opinions of those in favor of hate crimes laws and I understand the arguments. I am not here to persuade you otherwise. But, be aware of the diversity of viewpoints in our community. Those that oppose hate crime laws are not "ignorant" any more than those who support them are "geniuses", so let us try to keep the discourse civil and not personal.

    Criminal indifference is not the horrible thing people seem to imply. We do already criminalize indifference quite a bit. I pose it not as THE answer, but as a possible answer to a problem: What do we do when the crimes on the books do not address a particular incident that strikes many of us as criminal? Are we to just sit on our hands and say, oh well? Perhaps -- one commenatator noted that the criminal law is not meant to cover everything, and that's true. But, if these incidents will happen with increasing commonality and we're having trouble addressing them in the courts, then -- and only then -- a change may be necessary.

    This is meant to spark discussion and I always look forward to the readership's viewpoint.

    Oh, and @DR, you're correct about my Simpsons hypothetical under the Model Penal Code definition of robbery (a robbery being "in the course of committing a theft, purposely putting the victim in fear of immediate serious bodily harm"). Under the MPC, then, you are right. However, many states -- even those that have adopted the MPC -- still require an actual theft, an actual taking, for it to be robbery. So, my I propose that we are both correct?

    Thank you everyone for your comments! I hope this continues to spark discussion.

    Posted by: Ari | Oct 7, 2010 5:51:34 PM

  12. I won't argue too much as a professional courtesy, lol.

    Anyway, I think we need to lean on civil law more, quite frankly, it's what it's there for. We already have wrongful death... maybe an analysis of that? Infliction of Emotional Distress? Other Torts?

    I would agree with you more if you went that route, I stand firm in my belief that we can't overtax the criminal justice system to cover things it simply was not meant to cover.

    Posted by: DR | Oct 7, 2010 6:05:48 PM

  13. Uh, but what about the fact that by Ravi doing this to Tyler, he introduced that multiplier effect that increased Tyler's chances of killing himself by 4x? Just because he didn't know the original chance Tyler had for killing himself doesn't mean that Ravi didn't introduce that multiplier effect.

    inb4 "but then all gay kids will kill themselves to put the bully in jail!"

    Posted by: anon | Oct 8, 2010 5:38:45 PM

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