Two thought experiments in the Tyler Clementi case

This blog is a friend of equal rights, and of marriage equality. I have written many posts and a newspaper editorial stating my position loudly and clearly.

But I don’t think I will ever see eye to eye with people, of any sexual orientation, who believe that harsh words and actions directed at gay/lesbian/transgender folk must be classified as hate crimes, and punished extra severely. You want equality? I’ll stand with you, and fight alongside you. But the moment you begin arguing that your people are more equal than other people — well, excuse me while I spin on a dime, and become your implacable foe. Even Animal Farm-reading eighth-graders might understand why I feel that way.

Quick recap for those who need it: Tyler Clementi was a Rutgers freshman whose 2010 erotic encounter with a male acquaintance was watched by Clementi’s roommate, Dharun Ravi, via a webcam that Ravi had stealthily placed in their shared quarters. Ravi then wrote crass remarks to friends about Clementi’s sexual proclivities, via Twitter. Clementi found out and was apparently so distraught that he killed himself by jumping off a bridge.

Late last week, a U.S. jury convicted Ravi on multiple charges, including invasion of privacy, and of having acted on an allegedly anti-gay bias (he denies he hates gay people). For his “hate crime,” Ravi faces up to ten years in jail and possible deportation to India, where he hasn’t lived since he was two.

Many of my friends are pleased with the verdict, or at least OK with it. One of them even saw Ravi’s reprehensible behavior as the equivalent of a direct physical “threat” to Clementi. The friend added that Clementi had clearly “been disturbed by what Ravi had done,” and argued that that was really all that mattered in elevating Ravi’s actions to a hate crime, a designation that draws higher sentences than a “regular” crime.

Where I come from, an actual “threat” would need to constitute something more than a few unpleasant Tweets, and more than a surreptitiously recorded groping. I think even the jury that convicted Ravi would back me up on that.

As for Clementi having been “disturbed by what Ravi had done,” yeah, no doubt. I would have been too, if I’d been in Clementi’s shoes. But so what? What is “being disturbed by something” supposed to prove? What unholy legal precept is being conjured with that phrase?

Look, I’m disturbed every day by the unconstitutional horrors that come out of Rick Santorum’s ugly mouth; just as I was disturbed by the angry woman who once commented on a pro-porn blog post of mine by saying that she fantasized about putting my dick in a vise. While they do not have the right to invade my privacy, they most assuredly can utter almost anything they damn well wish (excepting slander, libel, and threats of actual physical violence).

Being greatly upset does not give you the higher moral ground. It does not earn you automatic respect. It’s exactly the opposite for me: Play the “I’m really upset” card as if it means anything — a plea for sympathy usually made by hypocrites and weasels — and you will earn my enmity and scorn. Claiming that intemperate words can hurt just as much as bullets or blades is, after all, the same lame “argument” that religious crybabies of various stripes love making. Funnily enough, they believe that they somehow have the right not to have their feelings hurt.

The actor and writer Stephen Fry (who’s gay, by the way) dealt with that crowd rather admirably, I thought:

If you’re on the fence about the Ravi verdict, or if you support it, I have two quick mental exercises for you.

THOUGHT EXPERIMENT NUMBER ONE: Let’s say that Clementi never jumped off that bridge, but everything else about the case remains the same. Do you believe that Ravi would have even been prosecuted for what he did, much less convicted by a jury and facing ten years in jail? More to the point: If you’d been on that jury, and Tyler Clementi was alive and appearing in court as the plaintiff, would you have felt compelled to put Ravi behind bars for up to a decade? I don’t know, but I doubt it. Remember, Ravi’s awful behavior would still have been the same. But few people would probably choose to convict him in the absence of a dead body.

What does that tell us? It says that his actions only amount to a crime when there are certain outcomes that he had no control over. (It’s not like he handed Clementi a gun and advised him to shoot himself. And even if he had, that final deed would still be Clementi‘s choice, and no one else’s.)

Keep in mind that these are college students. They’re old enough to vote, old enough to go to war. We have a criminal-justice system that frequently treats (and tries) 14- and 15-year-olds as adults. Surely we can expect actual (young) adults to take responsibility for what they do. That means Clementi and Ravi.

Ravi doesn’t deserve to get of scott-free. Rutgers could have suspended or expelled him, which seems like good comeuppance. Clementi, had he decided not to step off that bridge, could have sued Ravi for invasion of privacy, and won a monetary settlement as well as moral vindication. Both of those remedies address the actual problematic behavior, rather than what may or may not have been on Ravi’s mind at various times.

Better, no?

THOUGHT EXPERIMENT NUMBER TWO: What if Ravi had spied on Clementi while the latter was making out with a woman? I’ll let The Washington Post‘s Richard Cohen flesh that one out:

Suppose ­­­­Dharun Ravi, the former Rutgers University student who spied on his roommate, had caught him not “making out with a dude,” as he so eloquently tweeted, but with a woman. And suppose further that this hypothetical roommate was awkward and sexually inexperienced and he had utterly failed at seduction. And suppose even further that this failure — this mortification — was seen by other students who mocked him behind his back so that, as did the real roommate, he jumped to his death from the George Washington Bridge. Would we be dealing with a hate crime?

Probably not. We would still have a revolting invasion of privacy and the same hideous bullying (via webcam) and the same tragic death, but the aspect of bias would be missing and with it the charges that could bring Ravi an additional ten years in prison. The jury in his case was not permitted to consider the suicide, but it is what turned this case from a college disciplinary proceeding into a staple of the morning shows – a jerky prank into a hideous tragedy.

Cohen is bothered by the same fundamental flaw that’s always stuck in my craw about hate-crime laws:

[H]ate crime laws do more than punish crimes. They also punish thought or speech — or both. If in the course of a fight, one of the fighters utters an anti-gay (or anti-black or anti-Semitic) epithet, then the crime of assault becomes one of hate as well. Beat up a heterosexual and it’s assault. Beat up a gay and it’s assault and a hate crime – a little extra jail time for having a dirty mouth.

I just cannot get comfortable with a legal system that punishes thought crime. Did Ravi commit a heinous invasion of privacy? Absolutely, and it deserves our straight-up condemnation. But a privacy invasion is all I see Ravi being guilty of. Yeah, OK, the guy is also guilty of being a first-class douche nozzle. But is he a criminal? Techdirt’s Mike Masnick rightly points out that

[W]hether or not your actions are seen as criminal depends almost entirely on how someone else reacts to them. If they shake off your actions, then you’re fine. If they commit suicide, you get punished. Thus, the incentive then is actually for kids to seriously hurt themselves if someone acts in a mean way towards them, as that increases the likelihood of the bully getting punished. That doesn’t sound like a good incentive system.

No, it doesn’t.

But in some ways, the Dharun Ravi trial was less about achieving practical goals, and more about scoring a symbolic victory over a more or less abstract foe. It seems to me that this wasn’t really a young man on trial — it was homophobia itself; or rather, Ravi’s particular brand of homophobia; or rather, his attitude that we surmised was probably kind of homophobic, or maybe not quite, but let’s just make ourselves feel good and convict him anyway.

Dharun Ravi will thus go to jail for what we inferred was in his mind — and instead of being ashamed by that, we’ll just pretend that justice was served, and move on to the next hate crime, until all ostensible hate has been cleansed from our great land. It’s going to be a while.

About Rogier:
Rogier is a Dutch-born, New-England-dwelling multi-media maven (OK, a writer and photographer) whose dead-tree publishing credits include the New York Times, Wired, Rolling Stone, Playboy, and Reason.
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10 Comments

  1. Lewin
    Posted March 21, 2012 at 11:50 am | Permalink

    We punish premeditated murder more harshly than manslaughter. Is that okay because we call it “intent” instead of “thought crime” ? So I think there is precedent for punishing some actions more harshly depending on the intent of the perpetrator. In hate crimes, the perpetrator’s intent is not just to harm the victim but also to intimidate an entire group of people. People aren’t being punished for their thoughts or speech, but those things give us clues to the intent of the crime.

    That said, I think you make good points about prosecution being unlikely if he hadn’t committed suicide, and that the purpose of the prosecution was a symbolic victory. It’s clear that while Ravi’s actions may have been the straw that broke the camel’s back, there was likely a long series anti-gay experiences that led up to Clementi’s final act. By punishing Ravi, those people who bullied Clementi along the way escape culpability. Ravi is just one part of a huge system that mistreats gay kids.

    • MikeS
      Posted March 21, 2012 at 12:32 pm | Permalink

      I don’t think intent in murder is comparable to the ‘thought crime’. Manslaughter is causing the death of someone but that was not your intended purpose. You screwed up and someone died because you turned left instead of right. Murder is you taking a knife and stabbing someone in the head. There is no accident in murder.

      With Hate Crimes the underlying actions itself are already illegal. Why those actions were taken doesn’t need a separate criminal statute. If the prosecutor wants to argue at sentencing that because of the perps views/prior actions he is more likely to repeat his actions and should receive a lengthier sentence he can already do that. If the maximum allowable sentence for that particular crime isn’t long enough to suit what the extra hate crime conviction brings, then I suspect there would be other injustices going on for particularly brutal crimes against someone who isn’t seen as one of the selected minority classes.

      • Lewin
        Posted March 21, 2012 at 1:50 pm | Permalink

        Perhaps a better example is the difference between first and second degree murder, manslaughter, etc. I should have used a specific example: If you plan in advance to kill somebody it’s treated more harshly than if you come home and find your spouse with a lover and kill them in the heat of the moment.

        I could also make an argument from consequences. The consequences of a “hate crime” assault go beyond the immediate victim and affect entire groups. A lynching wasn’t just an attack on a particular Black person but an attack on Black people as a whole. It’s also akin to why it’s more serious to kill a police officer or a crime witness than a regular joe because it’s seen as an attack on the justice system as a whole, not just on that individual.

        Finally I just want to reiterate that I don’t think thoughts or speech should be illegal, but they have the potential make certain crimes worse than they would have been in their absence.

        • MikeS
          Posted March 22, 2012 at 10:25 am | Permalink

          Well in that case I would agree they are the same crime and under the law they should be treated the same. I wouldn’t have any problems with the defense arguing that the guy just found out about his wife cheating on him and was in an ‘emotionally charged’ state or something. Bullshit, but that is what lawyers are good at.

          For serious hate crimes like say a lynching, that’s when I really disagree with the hate crime statutes. Suppose two idiots from Texas tie someone to the back of their pickup and drag him down the highway for a few miles. What should their punishment be? How much extra punishment do they deserve if the guy they dragged was of a race they didn’t like? Can you honestly say this extra punishment is deserved more here than if they had dragged someone’s 4 yr old daughter (who was of the same race)?

          Now I have no problems with the lawyers from both sides arguing about the circumstances of this crime and repercussions at a sentencing hearing. However I’d disagree with any additional criminal statutes here.

  2. BobL
    Posted March 21, 2012 at 6:51 pm | Permalink

    What if he actually fell off the bridge?

    • Bad Monkey
      Posted March 21, 2012 at 8:19 pm | Permalink

      Wouldn’t have mattered to the jury’s reasoning.

      Fell or jumped, he wouldn’t have been there but for the bias motivated invasion of privacy, or what he should have known would have been interpreted as a bias motivated invasion of privacy.

      • Ashli
        Posted March 21, 2012 at 8:32 pm | Permalink

        Actually, the jury was specifically instructed NOT to take into account during deliberations the fact that Clementi was dead…regardless of how it happened. Now, apparently they did know that was the outcome, so it was probably pretty difficult for them to seperate that from their decisions during deliberations, but as far as the judge was concerned Clementi’s death was not relevant for the crimes.

        • Bad Monkey
          Posted March 21, 2012 at 9:39 pm | Permalink

          Members of the jury please don’t think of the elephant which was led down main street and crushed a baby carriage under its feet and has been the subject of almost every news story about the accused when considering the charges that he unlawfully kept an elephant in the city limits.

          I would say the instruction had to be given, but was effectively useless. It may never have been spoken aloud during deliberations, but I don’t think one can honestly say it didn’t color their individual reasoning.

      • Tom Dial
        Posted March 24, 2012 at 11:18 am | Permalink

        As I recall, no evidence was introduced to indicated a reason for Tyler Clementi’s apparent suicide, and the defense’s request to introduce potential evidence in the form of notes found in his room after his death was denied. Other publicly available information does not support the proposition that Favi had much, if anything, to do with Clementi’s death.

  3. Andrea Saren
    Posted March 27, 2012 at 12:06 am | Permalink

    What was seen was 2 seconds of 2 men kissing fully clothed!!!

    This talk about “reprehensible” and “hideous” is lunatic stuff. Or just simpleminded – people who think something “causes” someone to commit suicide.

    People will come to their senses but meanwhile lets all tell our kids to avoid gay people like the plague. Don’t talk about them and don’t talk to them. Don’t friend them on facebook. Gay people can do anything, no matter how vicious and cruel, including bullying everyone in the dorm with gay rumors. They are immune from the law about “bias” and “hate.” But their delicate feelings are so protected by the politicians that you can end up facing a prison sentence for telling a private joke about one of them.

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