Ari Ezra Waldman | Dharun Ravi | Law - Gay, LGBT | News | Tyler Clementi

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.

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Comments

  1. I certainly have to take issue with your claim that this generation sees streaming a sexual encounter online without the participants' consent as not a big deal. Certainly, perceptions of privacy have changed, but I think the overwhelming majority of people recognize that it's wrong to invade someone's privacy in such a manner.

    I think you are cutting Mr. Ravi a bit too much slack. I am certainly concerned about the severity of the sentence for Mr. Ravi. It seems he is being scapegoated for our failure as a society to protect someone like Tyler Clementi. It seems Mr. Ravi is being punished more harshly because Tyler committed suicide, an act that it seems unlikely Mr. Ravi's actions caused. As a society, it's easier to scapegoat Mr. Ravi than to look at the more complicated failings that led to Mr. Clementi's tragic end.

    Posted by: ShawntheSheep | Mar 21, 2012 7:11:52 PM


  2. I follow Mr. Waldmann's commentary in this blog and have to say this one's out of character: I can't for the life of me figure what his point is.

    This collection of verbiage is what gives lawyers their bad name.

    So sorry - care to rewrite it so mere mortals can follow?

    Posted by: PixelWizard | Mar 21, 2012 7:17:19 PM


  3. "the decision to throw Mr. Ravi in jail fixes nothing"

    It fixes his lying hateful ass.

    "The incomparable Emily Bazelon"? The incomparably DISGUSTING Emily Bazelon rather.

    You can find my remarks on her sob-sisterism here, Ari

    http://fablog.ehrensteinland.com/2012/03/21/hommage-a-christopher-isherwood/

    I'd apprectie your taking a look at it and welcome your comments.

    Posted by: David Ehrenstein | Mar 21, 2012 7:19:07 PM


  4. I don't think the law is overbroad at all. At least not the charges that Mr. Ravi was convicted of. I feel those charges reflected a proper and decent law, and that the jury acted quite properly in finding him guilty of those and innocent of others.

    Further, I don't believe we should throw out our notions of privacy based on the facebookization of the world. Kids today may have a different take on privacy than their parents, but if it takes the force of criminal law to remind them where the boundaries of common decency and civil behavior really lie, then so be it.

    I don't take pleasure in the ruination of Mr. Ravi. But what he did is far beyond what the "kids today" excuse covers. If the lesson is that you can be as open about your own life as you please, but there are drastic consequences for deciding that for others - then that's a lesson this generation of young adults should take to heart as they make their way in the modern world.

    Posted by: Zlick | Mar 21, 2012 7:19:34 PM


  5. @Shawnthesheep, don't forget that the biggest grossing teen movie of all time had a webcam streamed sex scene as its hilarious climax. Admittedly American Pie pre-dates these kids, but there is certainly a very different idea of privacy. It wouldn't surprise me sadly for a teenager to think that by posting sexual questions on Just Us Boys, another teen's sex life is open territory.

    I tend to go with the New Yorker article on Ravi. I'm not convinced he was truly homophobic, but was instead hit by a juvenile jealousy that cocky, outgoing Ravi was still a virgin while his shy, introverted gay roomie was hooking up with older lovers.

    Posted by: Clif3012 | Mar 21, 2012 7:20:22 PM


  6. "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."

    This is absurd.

    If people want to take nude photos of themselves and post them online, etc... that is their choice.

    Telling everyone on twitter they can watch your roomate having sex by logging onto his webcam feed is something else entirely.

    Kids today don't go around thinking that because its the digital age it is okay to have a secret video camera watching people go to the bathroom or take a shower.

    Posted by: Wendel | Mar 21, 2012 7:22:34 PM


  7. @zlick: thank you for your comment. this is precisely the conversation/debate we should be having! thanks for contributing with your input!

    Posted by: Ari Ezra Waldman | Mar 21, 2012 7:26:12 PM


  8. @pixel: thank you for your comment. all lack of clarity is, of course, my fault. i normally strive to make everything accessible. i am basically arguing that too often, guilty verdicts like this can serve to absolve us as a society of the moral responsibility for creating the factors that made this tragedy happen in the first place.

    Posted by: Ari Ezra Waldman | Mar 21, 2012 7:28:07 PM


  9. This case, and all of the previous comments, make me glad that I left the divided, racist, and homophobic country in which I was born. I'm not sure what the USA stands for anymore. But I'm godamned sure that I left it 20 years ago.

    Posted by: scotsyank | Mar 21, 2012 7:37:30 PM


  10. I disagree that Ravi was not responsible for Tyler's death. Ravi was not directly responsible but indirectly he was and I think the jury saw that. We all see life as a good thing but when life becomes so overwhelming there are people who see death as the only way out. Tyler Clementi surely felt his life had lost value and that he had no future. That was a direct result of the degradation, belittlement, humiliation and homophobia heaved on his shoulders by Ravi.

    Losing control, feeling helpless, finding no purpose to your life was clearly demonstrated by Jason Russell last week when his own mental state became so pressured his mind snapped. Instead of suicide, thank goodness, he went bonkers running naked and slapping the world (sidewalk).

    I firmly believe that Tyler would be here today, alive and hopefully in love with his boyfriend. Life does get better but Ravi gave made sure his particular life was not worth living. Jumping off a bridge was, in his 20-something mind, his only option.

    Posted by: OS2Guy | Mar 21, 2012 7:53:02 PM


  11. I agree with Ari's point on the danger of this verdict absolving society as a whole of responsibility--in effect, using Ravi as a scapegoat. But there's also been a lot of commentary (including, I would submit, Bazelon's NYT op-ed though not her more nuanced columns on the case in Slate) that seems to absolve Ravi of responsibility for his actions.

    Ravi's behavior wasn't in any way typical of college students (at least that I have encountered during my time as a professor), and the decisions that he made--to set up the spying equipment, to advertise it, to alter his tweets--were his and his alone. Yet he never seemed to believe he did anything wrong--as seen in his rejection of the plea bargain and in his attorney's trial tactic of attempting to play to (absent, fortunately) homophobic sentiments among the jury.

    He invaded his roommate's privacy in a particularly cruel way, and he did so with malevolent intent. Since both Clementi's parents and his other victim have said they don't want him to get a long sentence, my guess is he likely will receive only a short prison term, but I don't see anything wrong, either legally or morally, with such an outcome.

    Posted by: Mark | Mar 21, 2012 8:21:22 PM


  12. I'm not sure I'm grasping what moral bankruptcy Ari is getting at. Is it the moral bankruptcy of privacy erosion? (Boy, the story this week about the NSA's huge database of everything every American has ever done is far beyond anything the facebook generation could even conceive of.) So, to me, the internet age revisions of privacy notions are really pretty tame and, as I said previously, I think the important boundaries remain in place and no amount of modern revision has touched them.

    Or is it the moral bankruptcy of attitudes towards gays? The article doesn't seem to be addressing that, but the only moral bankruptcy I see in place that underlies the tragedy of this case is the rampant homophobia expressed by Ravi's twitter followers. To my mind, however, the moral bankruptcy underlying Ravi's behavior was that of the 1% mentality. In any event, he was portrayed in the New Yorker article as a huge class-conscious snob and not rampantly homophobic. (In this area, I think the jury got the bias counts exactly right).

    There's lots of moral bankruptcy to go around here, but I think changing privacy standards are the least of it.

    Posted by: Zlick | Mar 21, 2012 8:23:21 PM


  13. Thanks, as always, for your commentary, Ari. It clarified some of what I'd been thinking.

    These verdicts tend to make people feel like the problem is over, much like public executions used to do.

    Posted by: Jeff NYC | Mar 21, 2012 8:27:22 PM


  14. Privacy boundaries have changed and our laws must as well.
    If Tyler Clementi committed suicide because he couldn't get a room change, then I understand. A semester with that ass hole could seem like 10 years in prison. But if it was merely because his privacy was invaded, then he was even more old fashioned than me.
    We cannot turn back the clock on changing notions of privacy anymore than we can turn back gay rights. It's out of the box now. I think a lot of people Ravi's age think of this as too minor a transgression for 10 years in prison.

    Posted by: Markt | Mar 21, 2012 8:50:33 PM


  15. Was this written by a lawyer? It comes as news to me that the criminal prosecution of an individual somehow imposes legal obligations on universities. Somehow, the rest of the world missed that as well. So glad that we have Ari Waldman of a 4th tier law school to enlighten us.

    In fact, this case imposes no obligation on any university. Rutgers acted reasonably in this case, responding quickly to Clementi's complaint and even offering him alternate living space immediately. I believe that his parents are not pursuing any civil action against the university. So what rubbish is Waldman spewing?

    Ari, if you want to make yourself useful, why don't you discuss how a group of homophobic bullies aided and abetted Ravi and suffered no consequences. One of Ravi's friends helped him set up the cam. The despicable Michelle Huang of Cornell urged him to broadcast Clementi and even stoked his homophobia by texting about "gross" Asian lesbians. A group of Rutgers students persuaded Molly Wei to activate the cam a second time. And a larger group of students were to form Ravi's "viewing party". At no time did they do a thing to stop this. It is clear from Clementi's JustUsBoys posts and other messages that he was more unnerved by the collusion of these other students than he was about the camming itself. Yet not one of these other students has been received so much as a mild reprimand from the university. How about posting about that, delicate genius?

    Posted by: Gus | Mar 21, 2012 9:01:07 PM


  16. HE'S NOT GOING TO GET 10 YEARS IN PRISON!!!!!

    WHAT DO YOU PEOPLE NEED? FLASH CARDS?

    Posted by: David Ehrenstein | Mar 21, 2012 9:03:04 PM


  17. There was no decision to put Ravi in jail. He rejected a plea deal that would have avoided jail. Instead, he (or his attorney) decided to play a new version of the old "homosexual panic" defense. They argued that he was a naive young man who had never seen two men kiss before and that affected his otherwise good judgment. Ravi is responsible for humiliating a young man who did nothing to him. He refused to accept responsibility for his actions. He now deserves to be sent to jail. I hope that his sentence will be closer to one-year than to ten, but he definitely deserves jail time and deportation.

    Posted by: Jay | Mar 21, 2012 9:03:43 PM


  18. One test for a case like this is whether it would have been prosecuted under circumstances that did not lead (however unprovably, however indirectly) to a death. The obvious answer is that there would have been no prosecution at all.

    Justice isn't served when people look for a scapegoat.

    Posted by: BobN | Mar 21, 2012 9:05:44 PM


  19. @gus: you are free to disagree vehemently with me, but you demean us all by resorting to personal attacks on my credibility and motives. obviously, a guilty verdict does not include direct requirements on a university. but you can be sure that a guilty verdict in this case is indirectly indicating to schools that if they do nothing about known similar cases, they can be held civilly liable for failure to act. and, if you dont trust me on that point, tenured professors at uc berkeley and fordham said the exact same thing in comments to the San Francisco Chronicle and Star Ledger, respectively. but again, please keep your comments substantive and respectful, lest you lose all credibility.

    Posted by: Ari Ezra Waldman | Mar 21, 2012 9:10:23 PM


  20. The positive thing about this conviction is that, while Ravi and his attorneys bet the store on having a homophobic jury that could be convinced that there was nothing wrong with humiliating a gay man, the jury actually looked at the law and did the right thing. We should be grateful for that. I think this means that at least in some states where there are good prosecutors, the homosexual panic defense will no longer work.

    Posted by: Jay | Mar 21, 2012 9:11:33 PM


  21. Mr. Ehrenstein until he's sentenced he could get the maximum which is 10 years (per a newspaper article). There are crazy judges out there who love throwing the book at someone they deem the "bad guy." Have you never watched Judge Judy? She was a real judge with sentencing power here in NYC.
    Ari you end by lamenting that the balancing tests have gone awry. This is a symptom of changing times. Something is lost and something is gained - look at the Arab Spring, wikileaks, Shades of Gray. It will take some time for society and our laws to catch up. I catch a whiff of the reactionary in your lament and on that count you should be careful.

    Posted by: Markt | Mar 21, 2012 9:23:33 PM


  22. @davidehrenstein: i think you are right. there is almost no chance mr ravi will get the ten years. sentence appropriateness (whatever the sentence ends up being) is another topic to discuss, and worth discussion. i was more focused on the guilty verdict as a statement of social condemnation and the effects/impact thereof.

    Posted by: Ari Ezra Waldman | Mar 21, 2012 9:33:25 PM


  23. I agree with BOBN about the selective enforcement. I've said previously I think the laws Ravi was charged with having broken are just, but choosing to enforce them only when there's public outcry or when death results as opposed to merely the results the laws are about - then that is morally reprehensible in and of itself. I'm afraid I agree it's unlikely Ravi would have been tried and convicted if Tyler Clementi had not committed suicide.

    I don't think that absolves Ravi. It's a shortcoming of our society. But, alas, an understandable one given human nature.

    Posted by: Zlick | Mar 21, 2012 9:34:40 PM


  24. Gus' "delicate genius" snark is a "Seinfeld" reference, Ari.

    (Cracked me up.)

    Posted by: David Ehrenstein | Mar 21, 2012 10:04:52 PM


  25. i got that. i have seen every seinfeld episode, after all. but, after he decided to question my credibility by indicting the law school im currently teaching at, i stopped reading.

    Posted by: Ari Ezra Waldman | Mar 21, 2012 10:22:58 PM


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