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

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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'm not going to say whether I think his crime deserves X amount of time in prison, but I will say when they refused to settle for the community service somehow thinking that was just 'too much', any sympathy went out the door.

    Posted by: Wes | Mar 21, 2012 10:39:54 PM


  2. I believe that Dharun knew "certain things do not belong out in the open, should not be shared, and should be respected as personal". He just did it anyway. He did it to be mean. I don't blame our "culture of me". I blame a bad kid.

    Posted by: Kelly in Atlantic City | Mar 21, 2012 10:44:28 PM


  3. Why as a society are we so eager to throw people in jail and toss the key? What he did was reprehensible, but with counseling and awareness classes, he is more likely to understand what he did. We put more people in jail than any other country in the world, and it's not fixing a thing.

    Posted by: Erich | Mar 21, 2012 11:04:08 PM


  4. David Ehrenstein, you are the kind of person that makes reading comment sections almost impossible, and utterly depressing.

    Have you ever doubted your brilliance, even for a second? Asked an honest question with a view to getting an honest answer? Engaged in civil discussion? Wondered if there was anything short of utter stupidity leading someone to disagree with you? Regretted a dismissive, disdainful, nasty, and/or bitter thing you've written?

    If so, when? And why did you stop?

    Posted by: mammmab | Mar 21, 2012 11:29:31 PM


  5. Can't thank you enough, Mr. Walderman, for the continued outstanding insight you provide on these important legal cases. No one out there is providing the kind of wonder, in-depth analysis that you do. Extremely well said, and spot on.

    Posted by: Craig | Mar 21, 2012 11:36:58 PM


  6. Gawd I get so sick of the infighting here.

    My humble opinion - the jury did the right thing, and he deserves what he gets. He clearly invaded someone's privacy, he clearly made a big deal about it because that person was gay (I firmly believe had his roommate been straight this would not have happened and he would not have given it a second thought), and he clearly tried to cover up his tracks. He knew exactly what he was doing. Is he necessarily homophobic? Depends on your definition of such. Does he hate homosexuals? Again, depends on your definition of such. Is he a stupid asshat? Yes - but that doesn't excuse you from breaking the law. Tyler clearly had issues. Whether or not what Ravi did contributed to his death - probably not, at least in my opinion, but its a moot point because that issue wasn't on trial here. In terms of the interpretation of the law - which is what the jury is supposed to focus on without emotion - Ravi got what he deserved. I'm just surprised the jury actually did what it was supposed to - but I have to credit the judge in this case - he was really, really detailed, and really specific with his instruction to the jury.

    Posted by: Davelandia | Mar 21, 2012 11:50:46 PM


  7. @bobn: You might be right, but I do think that the facts of the case justify the invasion of privacy conviction regardless of Clementi's suicide. It's the bias convictions that trouble me. The evidence was very slim and the main victim was deceased. I beleive there was ample room for reasonable doubt. The jury of course felt differently and now I guess it's up the appeals court to decide if they got it right or not.

    Posted by: JohnAGJ | Mar 21, 2012 11:55:10 PM


  8. Ari, I'm a fan, but this column is unreadable, as, too, your elaboration @pixel: "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: Jack | Mar 22, 2012 12:09:02 AM


  9. @Ari:
    Four points, no attacks:

    This case does *not* "impose new new obligations" (your words) on universities. If you didn't mean to say that the case imposes new obligations, then don't post on the internet that the case imposes new obligations. Nor does the Ravi case send any message, direct or indirect, about new obligations of universities. The obligation of a university to act when it has knowledge that one of the residents of its dorms is being subjected to criminal or unlawful conduct already exists under NJ law; it isn't new. So while you may have seen someone on TV talking about this, it doesn't make it so.

    Second, I really was not kidding about how I would like to see you address the issue of the unindicted co-conspirators in this case. If you want a hook b/t this case and university life, there it is. Why is it that at 2 of the nation's the most progressive and politically correct campuses (Rutgers and Cornell), where an off-color joke can get you sent to a tribunal, there has been not the slightest action taken against any of the students who actively aided and abetted Ravi's scheme, or at the least, cheered him on and inflicted documented mental distress on Clementi? Do an analysis as to the the potential criminal, civil, or disciplinary exposure of the members of the "viewing party" and you'll be bringing something unique to the discussion.

    Third, I neglected to take umbrage at your equating Clementi's fate with that of Ravi ("one life is lost and another is ruined."). Whatever the cause or causes, Clementi is dead. His life is over. Ravi most likely will receive the minimum sentence of 5 years and likely actually serve 1 year and several months. He likely will be out when he is at the ripe old age of 22 or at the latest 26. Then he will be deported to India. Believe it or not, life in India is not a ruined life. Just ask 1 billion Indians. To equate the fates of these 2 is insensitive at best.

    Finally, you include your academic and professional credentials on each of your posts. I presume that you do this b/c you want people to give greater weight to your legal analysis than they might if you were a layperson without those credentials. Accordingly, I do not think it is out of line to criticize those credentials. It certainly isn't a personal attack and should not be taken as such. And yes, the delicate genius jibe was Seinfeld. Now if you'll excuse me, these pretzels are making me thirsty.

    Posted by: Gus | Mar 22, 2012 1:34:23 AM


  10. INTENT: Destroy person & rob them of privacy
    MEANS: Technological vs. physical tool
    OUTCOME: Should be the same.

    A 4th tier law professor's assumption that the White Collar nature of the act somehow mitigates the outcome and his intention MISSES the intended violence committed by Ravi.

    Ravi should get at least 10 years. Donate to the Trevor Project.

    Towleroad = NOT the best gay blog anymore.

    Posted by: WhiteCollarHateCrime | Mar 22, 2012 1:38:12 AM


  11. I think a very interesting question is
    "They were 18, legal, but just out of the house, and still controlled by their relationship to their parents"
    Tyler would be alive if Jane Clementi had been accepting, rather than cold and self-centered, when he came out.
    Dahrun would have taken the plea bargain if his father could have accepted the loss of face in the community.
    (as I see it)

    Posted by: Bob | Mar 22, 2012 3:46:34 AM


  12. I can't believe some people are trying to defend Ravi. He isn't charged with the suicide however, may I ask, what do you think Ravi thought would be the outcome? The older lover has stated, in so many words, people at the dorm were reacting in a very negative manner. Ravi made the world crumble around his gay roommate. He broke the law and he's getting what he deserves. All I can say is hopefully he'll be paired up with a 300 pound cell mate.

    Posted by: Michael | Mar 22, 2012 3:56:24 AM


  13. Through this tragic incident I've realized why homophobia exists....it exists because of many, many gay people. Gay people who apologize to homophobes for being homophobic and illegally commiting crimes. As is the case here. The number of people who've felt AS sad for Ravi as they have for Tyler when this verdict was read speaks volumes on societal homophobia, but the number of GAY people who have come to defend Ravi, and feel sorry for him facing consequences for his actions tell me that homophobia can only be cured in the gay community, because homophobia exists most amongst us gays.

    Posted by: Tiulor | Mar 22, 2012 4:44:47 AM


  14. Shame on you Ari. You go and harpoon on gay rights, and equality and when it concerns a distressed gay individual who was beyond mistreated by a roomate who made constant and consistent issue with his being gay....you come to bat for Ravi. I will never take your writing and commentary serious again, because they lack compassion, heart and *loyalty* for the gay community. How dismissive you managed to be toward Tyler's feelings during his time in that dorm is how dismissive you are toward all LGBT community when they face notable discrimination. You may be a lawyer, but you're not a compassionate person, and sadly, the two seem to go against one another often.

    Posted by: USC Trojan Fan | Mar 22, 2012 4:47:53 AM


  15. A black kid roaming a neighborhood and getting shot (with little to no evidence pointing to the shooter being a rabid racist) brings the ENTIRE black community together, with marches, protests, and rallies throughout the country this week. Constant media coverage about racism in America. And the neighborhood watchman who shot the kid is already labeled as the biggest racist to walk this country, with the black community demanding a national conversation about racism.

    A gay kid has a roomate who is known to have been uncomfortable with his roomates sexuality, has stated on twitter being uncomfortable with his roomate engaging in his sexuality, has stated he "hates poor and gay people", freely used words like "fag" and had a social gathering to webcast his gay roomates intimate moment while poking fun and laughing, leading to the suicide of said gay roomate....and virtually every write up I've read by gay bloggers have stated there is no evidence Ravi was at all homophobic, Ravi is being scapegoated, Ravi was just a silly immature prankster, Ravi does not dislike gay people, Ravi now has his life ruined, Ravi...Ravi...Ravi. And you wonder why gay rights are often at a stand still? Look no further than GLBT.

    Posted by: IonMpvies | Mar 22, 2012 4:53:51 AM


  16. for all the occasional high class snark, this is thus far by far the most thoroughly considered "flame war" this blog has had in ages. i was going to simply post a dismissive one liner indicative of my dissatisfaction with ari's appraisal, single handed pilpul, not expecting to see such erudition and relative self control.

    so, i've made my pithy observation, expressed my deep disappointment, but i absolutely must compliment the posters thus far; this has actually shed as much light as heat, a rarety in comments sections.

    Posted by: bandanajack | Mar 22, 2012 5:00:22 AM


  17. To Ari Ezra,

    Why is it your write ups always seem to indicate the worst form of homophobia, and the only kind of homophobia to exist is lack of marriage equality? There's many, many other kinds of homophobia. Like having a militantly homophobic roomate in college at your dorm, as I did. One that frequently belittled my existence with homophobic jabs, and actions, and words. Of course, if that case were to be put forth to 'gay scholars' like yourself, it simply wouldn't constitute at homophobia. Just kids being kids, because for folks like you, homophobia = not being able to get married, and just that.

    I often wish the gay community would first tackle the issue of homophobia (outside of courtrooms demanding marriage) before devoting every ounce of it's effort toward one cause and one cause only. Call it an unpopular opinion, but the suicide of our gay youth is far more important than my ability to get married, yet the most vocal gay spokesmen for gay marriage have been the most indifferent toward this story. That is our problem as a community. We all rallied toward one crusafe -gay marriage- and decided to neglect everything else.

    Posted by: Dustin J. Landry | Mar 22, 2012 5:00:32 AM


  18. When a blog like towleroad has an entry equating Ravi's justified consequences for his actions being the same as Tyler being killed ('one life over, one life ruined') and makes a martyr out of a known homophobe, that's when I know a great many of the issues toward gays comes directly from gays. Internalized homophobia to be exact.

    The difference between our community and other communities is, other communities rally toward each other in known instances of tragedy toward one of their own. Be it Black, Hispanic, Jews, or women. With gays, we are the first to question our own motives, and give the benefit of the doubt to the heterosexual, while then dismissing the whole thing and making the accused heterosexual the martyr. I.E; Case in point.

    Posted by: Kyle-ATL | Mar 22, 2012 5:05:51 AM


  19. This entire write up is sooooooooo flawed, as is everyone who has argued that Ravi as an *adult* being forced to face the punishments of *his own actions* is him being scapegoated, for a cultural sin that society should face, rather than making him accountable.

    To those of you that argue Ravi is not at fault for his homophobia and actions, and it's societies fault, therefor society should face the blame. Then I argue that the man in the 1960s who harassed black individuals, and a man in 2012 who denies entry to an establishment to blacks is not at fault, and should face no consequences for their actions. Heck, it's not their fault, after all, they are being scapegoats based on societies racism.

    Couldn't every convicted crime commited with a bias toward a demographic be seen as an scapegoat because of societies shortcomings toward tolerance?
    Oh, you attacked a Latino person for being latino? Not your fault. Let's not put you in jail, let's try counseling. After all, it's not your fault. It's societies fault for being racist.
    I think SOME people are just getting a little bit creative on their wanting to justify a known homophobe, caught in the act of homophobia.

    Posted by: Michelle | Mar 22, 2012 5:22:07 AM


  20. Wow. This was a very disappointing read, and totally misguided.

    What I got out of Ari's read is:

    * Every kid does what Ravi did. For this generation, spying on your roomie being intimate is no biggie (wrong, and sweeping generalization btw)

    * We're to quick to make unlawful adults face the consequences of their actions. Adults commiting crimes is everyone else's fault.

    * Poor Ravi. Poor, poor Ravi Dharun.

    Oddly enough, not much regarding the homophobic element of the many incidents that led to Tyler expressing depression over his living situation. Not much empathy, or even facts shared by Mr. Ezra regarding the homophobic angle of this story. Again, very discouraging read.

    Posted by: Real Talk | Mar 22, 2012 5:31:16 AM


  21. Ari Ezrra wrote "Ravi also had tweeted his sarcastic disappointment with his roommates sexuality."

    Wait. Hold up. sarcastic according to who? were you in Ravi's head at the time when he made a statement clearly indicating resent and dissappointment over his roomate being gay, to know that he didn't mean that statement at all, and was in fact saying it sarcastically (in other words, actually liked his roomate being gay)
    Who tool you his comment to a friend about not being fond of Tyler being gay was sarcastic? Me thinks this entire thing was written with a bias of it's own, one favoring Ravi, and all but painting him as an angelic, innocent bystandard.
    Lawyers (smh)

    Posted by: Real Talk | Mar 22, 2012 5:35:39 AM


  22. "In a world where teenagers see no difference between their physical and digital selves,"

    That is not necessarily so. Many hide behind screen names (or "Anonymous") and live double or multiple lives. The internet would be a far different place if it were required that everyone use their legal name when posting.

    Posted by: Oliver | Mar 22, 2012 6:48:25 AM


  23. @USCTroganFan: thank you for your comment. but, with respect, if you (or anyone else) thinks i defended mr. ravi anywhere in this article, you didnt read the whole thing. nor did you read it closely. in fact, twice i say that our ire belongs directed at mr. ravi. my point is that such focus cannot be an excuse for not dealing with underlying social norms that created this problem in the first place. i dont accept your view as an alternative viewpoint because you are basically misreading my post.

    Posted by: Ari Ezra Waldman | Mar 22, 2012 7:44:05 AM


  24. The NJ hate crimes law allows the state of mind of the victim to be taken into account, and (thanks to the internet) the prosecutors were able to do that. Tyler's voice spoke out to those jurors in the form of his online postings. It seems to me that's at least as big a factor in this case as shifting notions of privacy.

    Posted by: BZ | Mar 22, 2012 8:37:53 AM


  25. Ari, before you go questioning hate crime laws (which you did) and being an apologist for criminals with the flawed argument of 'america has too many people behind bars' (maybe because they commited a CRIME?!)
    read the story about a gay men who was minding his own business in D.C, walking to an IHOP, was called a fa*(*ott the entire time, then attacked, kicked, slammed, dragged, shot at...and that was just one of 3 anti gay incidents in a mile vacinity in that city. Now you go on and argue we have too many criminals behind bars, how they should be let free, and we should just be a society of forgiveness.
    Lawyers have dimensionality in their thinking. Some want us all behind bars, while a greater majority want to see every single criminal freed.

    Posted by: Dennis | Mar 22, 2012 8:44:25 AM


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