Sunday, March 18, 2012

When hard cases make bad law: Why the Rutgers Conviction is Wrong

There is an old and oft repeated saying, heard among lawyers and judges, that hard cases make bad law. The recent tragedy at Rutger's University where a young man, Tyler Clementi, took his own life after learning that his roommate had secretly taped him kissing an older man, is just such a case.

The tragic loss of what seemed to have been a gifted and sensitive young man has been compounded now with the conviction of his roommate, Dharun Ravi, on bias intimidation, invasion of privacy and other charges. The case against Ravi was not a strong case for bias intimidation or any type of hate crime charged.  It was also not a typical case of bullying.  There was no evidence that Ravi directly belittled Clementi, threatened him, hurled epithets at him on a regular basis or engaged in any other verbal or physical intimidation. When Clementi requested a room change after finding out that Ravi had spied on him via his web cam, Ravi text messaged him to say he knew he was gay and that it didn't bother him.

Whether Ravi was in fact comfortable with his roommate being gay is not even the issue. He need not have been comfortable with the sexual activity going on in a shared dorm room; just as any young college roommate might not be comfortable with their roommate's gay or straight nocturnal activities.  For some young people getting kicked out of their dorm by a roommate who is having sex is a rite of passage or a mere annoyance.  Yet for others, the idea that a roommate may be engaged in sexual activity in their shared room could upset them; the idea that an older individual might be engaging in sexual activity in their room with a roommate might even be considered shocking.

The man who was Clementi's guest and who was seen by Ravi on the webcam was 32 years old; over ten years older than both Clementi and Ravi. There was no evidence that Ravi threatened Clementi with any webcam footage and in fact the footage that showed Clementi and the older man kissing was only ever seen by a handful of other students. Contrary to earlier reports, there was never any video showing the two engaged in sexual intercourse. Clementi was said to have checked Ravi's twitter feed approximately 38 times prior to his suicide; an act that was attributed to his fear of what he might say about his interactions with this older male. The fact that Clementi ultimately took his life makes this a terribly sad fact, but one that still doesn't show any intentional act on Ravi's part to instill that fear and intimidation in Clementi.

The identity of the older male in Clementi and Ravi’s room has been protected throughout this case and yet isn’t it just as easy to find potential fault with him and his actions? If he remains insistent on maintaining his privacy and anonymity isn’t it at least possible that he was the one putting pressure on Clementi when he heard that his roommate had ‘caught’ them on his webcam? A 32-year-old male who needed to hide the fact that he was meeting a 19-year-old male student for sex in his dorm room could be very insistent and even intimidating regarding the protection of his own anonymity. Why did prosecutors work so hard to keep his identity a secret?

Doesn’t Ravi, and each one of us, retain at least some first amendment rights to freedom of speech? Are college students who report on twitter about who Sally went home with after the party last night in violation of some law now if it turns out that Sally is devastated by the news of her sexual exploits reaching the masses? One of the jurors was reported after the verdict commenting on the dangers of posting on twitter and Facebook for her own children and how she would now advise them to be so much more careful of what they say. This creates an unreasonable burden on freedom of speech and strains the legal definitions of 'bias intimidation', 'hate crime' and 'invasion of privacy'.  Clementi was a roommate in a shared dorm room; he never had any rights to private and exclusive use of the room and his roommate could have legally and rightfully walked into the room that they shared at any time.  Ravi's observation of his roommate, although obtained by web cam, was also an observation of his own room; something he had a legal right to do just as a homeowner can install a 'nanny cam' or other hidden camera to secure and observe their own legal premises. 

The prosecutors and the jury made an unsupported leap from the facts to the law in a case that was widely touted as a banner case against cyber bullying and homophobia.  In reality, the case had little to do with either concept, as there wasn't any real evidence of either bullying or homophobia presented.  If Ravi had simply walked in on Clementi and his date while they were being intimate and expressed shock what would have occurred? If he had then tweeted or posted on facebook or simply told his friends what he saw, isn't it possible that Clementi, if he had a sufficiently sensitive mindset and was otherwise troubled, would feel the same potential humiliation and seek the same drastic and terrible 'solution'? The overreaching of the New Jersey hate crime legislation in this case is dramatic and should be appealed before it becomes a standing precedent for a new line of cases where tragedy only begets more tragedy and where ordinary free speech is subjected to chilling new constraints.

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