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03/21/2012

The Dharun Ravi Verdict:
Bias Crimes and the Changing Idea of Privacy

BY ARI EZRA WALDMAN

Dharun Ravi didnt kill Tyler Clementi. He invaded his privacy and did so with antigay animus. Mr. Ravi focused a webcam on his roommate's bed so he and another student could watch live as Tyler "hooked up" with another man. He also had tweeted his sarcastic disappointment with his roommates sexuality. These are the facts as seen by a New Jersey jury, and given the guilty verdict, these are now the facts in the eyes of the law.

RaviThe verdict inspired satisfaction in some circles. While recognizing the tragedy, New York City Council Speaker and likely mayoral candidate Christine Quinn said that "justice has been served." Garden State Equality said Mr. Ravi will now face "the appropriate societal consequences." No one is "happy" with this verdict, as the Garden State Equality statement mercifully noted; but it is far from clear that a verdict that could result in decades of imprisonment for Mr. Ravi is "justice" or an "appropriate societal" reaction to this undisputed tragedy.

What is clear is that Mr. Ravi's guilty verdict is both a legal game-changer and a cultural indictment: it imposes new obligations on universities, breathes life into the legal standard for criminal bias, and clarifies the illegitimacy of a "boys will be boys" defense. But, not all of those are good things. Our ire belongs with Mr. Ravi, but so does our pity; our real focus should be the moral bankruptcy of a culture so quick to convict, but unwilling to care.

CONTINUED, AFTER THE JUMP...

The practical legal effect of this verdict is the delegitimization of a boys-will-be-boys defense. Mr. Ravi's attorney tried to portray his client as a silly kid engaging in adolescent hijinx no more serious than flinging spit balls. It just got out of hand. The jury rejected that fanciful notion: the common back-and-forth among adolescents does not usually involve systematic and premeditated spying. The verdict also clarified what it means to be motivated by antigay bias. The underlying question posed to the jury was whether Mr. Ravi would have done what he did had his roommate been straight and making out with a woman. The defense tried to argue, yes, he would have: he only turned on the cam to keep an eye on his belongings given the presence of an older "homeless-looking" person who may take things. But, that could not explain why he focused the cam on Tyler's bed, why he invited someone to watch the stream, and texted a friend about Tyler's sexual behavior, not the profile of his paramour. And, Mr. Ravi's guilt also will oblige universities to add new information to their roommate counseling programs, and monitor, report, and investigate roommate-on-roommate privacy issues.

TylerBut, this verdict gives me great pause, and not only because it means one life is lost and another is ruined. The system is broken and the decision to throw Mr. Ravi in jail fixes nothing: we have put our faith in the criminal law when that sword is double-edged, and when we still have no idea what it means to be private in an online world. Instead of addressing those pressing issues, pundits have declared that justice has been done, ignoring the society's moral bankruptcy that created this tragedy.

Mr. Ravi was convicted of invading Tyler's privacy. In New Jersey, that means "collect[ing] or view[ing] images depicting nudity of sexual contact involving another individual without that person's consent." It is a separate crime to distribute those images or transmit them across some medium. On the facts presented to the jury, Mr. Ravi did just that, and it's hard to argue otherwise. But, these privacy statutes, and the way many of my colleagues think about privacy, are steeped in Twentieth Century conceptions of personal space. In a world where teenagers see no difference between their physical and digital selves, where Tyler volunteered his sexual orientation online, and where entire lives are up on YouTube for public consumption, personal privacy may mean something different than it did for Justice Brandeis and Justice Brennan, liberal lions who believed that the "right to be let alone" was among the most important rights in our legal tradition.

For this generation, Dharun's behavior seems innocuous, almost routine. It shouldnt be. Sexual conduct is the most private of private actions. Yet, our "culture of me" has failed to teach Dharun's generation the lesson that certain things do not belong out in the open, should not be shared, and should be respected as personal. In this way, we have criminalized something that many young people feel is just a part of life; after all, sex tapes make people famous these days.

The incomparable Emily Bazelon, who is writing a book about cyberbullying, argued in a recent New York Times Op-Ed that Mr. Ravi's guilty verdict represents an expansion of hate crime laws beyond their drafters' intent. These statutes, Ms. Bazelon states, "are being stretched to go after teenagers who acted meanly, but not violently. This isn’t what civil rights laws should be for." She indicts inartful drafting -- the writers of these laws made them too broad -- not the prosecutors using the laws given to them. And, she is exactly right. Assuming the legitimacy of hate crime laws, in general, expanding them to cover everything from insensitivity to burning a cross in a black person's yard not only delegitimizes the law, but challenges the social value of statutes aimed at protecting traditionally harassed groups.

I would go one step further. Politicians have a habit of riding waves of dissatisfaction, writing up a law with a fancy name, and affirming their faith in the power of the state to solve social problems. Sometimes, they do a great job (Title IX, the Voting Rights Act, the Social Security Act, are just some of the many examples). But, sometimes, a toothless statute is passed or political action is taken to absolve us of responsibility for the culture that our other laws have created. That is what has happened here.

Charging, let alone convicting, someone of a crime is a powerful statement of social condemnation. It says that what you did is bad enough that money damages (the domain of tort law) aren't enough to wash away your sins. And so it is only natural that we look to the Draconian arm of the criminal law in times of great tragedy and loss of life. Tyler's death is such an unspeakable shame that money damages from some wrongful death claim seem unseemly or insufficient. We want to hold someone responsible. But, Mr. Ravi is only the easiest target. The real culprit is a legal framework so morally bankrupt that we pass laws and decide cases that eliminate all notions of responsibility for hate speech online in the name of "freedom" or "innovation," we justify the desecration of funerals with vile hate speech on the ground of the "marketplace of ideas," and we raise the right to speak over the responsibility of the speaker. This regime expresses various dangerous values, from the lawlessness of the Internet to the demotion of civic virtue in our society, and both are plaguing our political culture and our youth.

If Mr. Ravi's guilty verdict further ups the ante on the privacy debate and signals the overbreadth of hate crime laws, it also reflects our tendency to punish ex ante rather than change the cultural and social norms that allowed this tragedy to happen in the first place.

***

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 research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

Posted Mar. 21,2012 at 6:55 PM EST by in Ari Ezra Waldman, Dharun Ravi, Law - Gay, LGBT, News, Tyler Clementi | Permalink | Comments (66)


Atlantis Cruise Passengers Arrested for Gay Sex in Dominica

Two gay men aboard an Atlantis Cruise ship docked in Dominica have been arrested, the AP reports:

DominicaPolice Constable John George said the men, ages 41 and 43, were arrested on suspicion of indecent exposure and “buggery,” a term equivalent to sodomy on the island. They have not been charged. The men were seen having sex on the Celebrity Summit cruise ship by someone on the dock, George said....

...President Rich Campbell, who is aboard the cruise, said in a phone interview that the two men were still being questioned as of Wednesday afternoon.

“We’re waiting to see what happens,” he said. “They’re due to arrive back fairly soon.”

The cruise, carrying 2,000 passengers, arrived today in Dominica from Puerto Rico.

The incident is the second headline-making incident for Atlantis in the Caribbean since New Years. In February, the tour company was in the news after a passenger went overboard off of Cozumel, Mexico.

More from local media outlet Dominica News:

One individual with information on the matter told DNO that “they were informed of the laws of Dominica and they were well aware that their acts would be considered a criminal offence”. Police Chief Cyrille Carrette has confirmed that  two males from California, John Robert Hart and Dennis Jay Mayer, have been charged with buggery and indecent exposure and are expected to appear in court on Thursday morning

Posted Mar. 21,2012 at 6:29 PM EST by in Atlantis Cruises, Dominica, News | Permalink | Comments (65)


NOM Announces Starbucks Boycott After Being Smacked Down at Shareholders Meeting: AUDIO

Jonathan Baker, the Director of the ironically named 'Corporate Fairness Project' at the National Organization for Marriage, stood up today at the Starbucks shareholders meeting and asked if the company's statement in support of same-sex marriage (that it is "core to who we are as a company") came from the top down, Good as You reports.

BakerStarbucks chairman and CEO Howard Shultz then got a big round of applause from shareholders when he answered Baker:

"I would assure you that the senior team at Starbucks discussed it, and it was, to be candid with you, not a difficult decision for us."

Following the meeting, NOM announced a boycott of the company, and an accompanying website, Dump Starbucks.

"Unlike our opponents, we do not target whole companies for the actions of an individual business executive in that company," said Brian Brown, NOM's president. "But Starbucks has taken a corporate position in support of redefining marriage for all of society. We will not tolerate an international company attempting to force its misguided values on citizens. The majority of Americans and virtually every consumer in some countries in which Starbucks operates believe that marriage is between one man and one woman. They will not be pleased to learn that their money is being used to advance gay marriage in society."

Listen to Baker's question and takedown, AFTER THE JUMP...

Posted Mar. 21,2012 at 6:06 PM EST by in News, NOM, Starbucks | Permalink | Comments (70)


Bill to Repeal Marriage Equality Fails in New Hampshire House

NhmarriageGreat news. A vote to repeal marriage equality has failed in the New Hampshire House by a vote of 211-116. HB 437 would have repealed the state's marriage equality law and replaced it with civil unions.

WMUR reports:

The Republican-controlled House voted 202-133 against the repeal. Same-sex couples have been able to marry in New Hampshire for two years.

The vote came after about two hours of debate on the bill and associated amendments, including ones which would have implemented civil unions and called for a nonbinding referendum on the issue.

Even if the bill had passed, Gov. John Lynch had pledged to veto it.

More from Phil Reese at the Washington Blade:

Several Republicans crossed the aisle to defeat the measure, including Reps. Mike Ball and Jennifer Coffey, who spoke out against the bill last week along with other advocates and Democratic lawmakers at a news conference organized by the marriage equality group Standing Up For New Hampshire Families. During a long and contentious debate on the bill in which the same amendment was brought back for reconsideration twice, strong statements were made on all sides of the issue.

“God is my judge, this legislative body is not my judge,” Rep. Cameron DeJong proclaimed. “Allow me to have this discussion between my God and me about my decisions.”

Rep. Ball compared the bill to segregation in the South, “Let’s put this dog down, like it deserves to be.”

In a surreal moment during the debate, an amendment to the bill was introduced to also bar marriage between left-handed people. That amendment failed to be considered.

NOTE: The original vote total of 202-133 (still noted on WMUR's site at the time of this posting) is incorrect, and the correct vote count is indeed 211-116.

Posted Mar. 21,2012 at 5:20 PM EST by in Gay Marriage, New Hampshire, News | Permalink | Comments (40)


Towleroad Guide to the Tube #1088

VANCOUVER CANUCKS: Ryan Kesler and Henrik Sedin talk about homophobia in hockey and the 'You Can Play' campaign.

PARENTS OF TRANSGENDER CHILDREN: It gets better.

JASON MRAZ: An American for marriage equality.

DAY OF DIALOGUE: Focus on the Family's Candi Cushman explains how Christian students are victimized and how the organization is planning to push its Biblical worldview in public schools across America.

For recent Guides to the Tube, click HERE.

Posted Mar. 21,2012 at 5:10 PM EST by in Focus on the Family, Hockey, Jason Mraz, News, Towleroad Guide to the Tube, Transgender | Permalink | Comments (5)


News: India, The Situation, Adam Levine, YMCA, Jean Valjean

RoadWhite House down the rabbit hole on marriage equality.

RoadOutsports: Fire Nebraska assistant football coach Ron Brown.

RoadJames Cameron poised to win deep sea race, prepares to dive into Mariana Trench.

BttRoadDon't Ask, Don't Tell on the Titanic: the love story of Major Archibald Butt and his devoted partner Frank Millet.

RoadJersey Shore's The Situation: drugged out?

RoadAttorney General Eric Holder speaks at the third White House LGBT Conference on Safe Schools: "I’m proud to join you in affirming a simple truth, and renewing this Administration’s commitment – as well as my own – to an essential idea:  that no one deserves to be bullied, harassed, or victimized because of who they are, how they worship, or who they love…."

RoadChristian couple files class action suit against YMCA, claims they are "homosexual brothels". Plaintiff goes into graphic detail about getting hit on in the locker room.

RoadDemocratic Texas state Senator Wendy Davis's office firebombed.

RoadAdam Levine to join American Horror Story?

VanderslootRoadHow Mitt Romney's anti-gay billionaire backer tried to silence critics. "As a public figure, VanderSloot promotes a remarkable political and social agenda. Through his lawyers, he is not shy in attacking these who taking issue with his words. His actions against gay people go back years, and they're more than worthy of examination."

RoadGreenpoint, Brooklyn gay bar Veronica People's Club shutters.

RoadFred Karger narrowly beat Ron Paul in the Puerto Rico primary. Said Karger: "For a first-time candidate, who just did it the old-fashioned way, worked hard and had a Spanish-language commercial on TV talking about my moderation and my plan to bring jobs to this country, I think that message is starting to resonate. And the more attention I can get and the more people understand that there’s a moderate Republican who pushes full equality in this campaign, I think I have a great chance of success."

RoadVIDEO: It's the new trailer for Season 2 of Game of Thrones.

JackmanRoadHugh Valjean.

RoadIndian government says it has fully accepted the court's high ruling decriminalizing homosexuality: "Vahanvati said though the government had opposed dilution of Section 377 as far as consensual gay sex in private was concerned, it later realised that the high court verdict was correct. The HC verdict decriminalizing homosexuality is acceptable to us, he stressed."

RoadCNN's Soledad O'Brien yuks it up with hate group leader Tony Perkins.

RoadRussian punk band stirs up debate about the role of the church, art and women in Russian society: "The group has been accused of blasphemy; three of the women are in pre-trial detention and could face up to seven years in prison."

RoadUganda's gays see progress in war of public opinion.

RoadHomophobic man jailed after outburst on British flight: "John Hawkins, who was with his children on the Thomas Cook flight, flew into an abusive rage while his young daughter sobbed. The 32-year-old lost his temper when a man in a nearby seat on the flight from Tenerife, told him to mind his language. He became aggressive, and shouted insults - directing gay jibes at male cabin crew. He eventually had to be restrained. The pilot felt he had no alternative but to return to Tenerife, at a cost of £12,500 to the airline."

Posted Mar. 21,2012 at 3:40 PM EST by | Permalink | Comments (25)



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