You’ve probably heard about the Tyler Clementi case. Dharun Ravi videotaped his roommate, Tyler Clementi having a gay encounter. The roommate later committed suicide. Actually, that’s not quite true. Ravi claims he set up a webcam to see if his roommate’s visitor would steal something. When he saw them kiss, he turned it off. Later he deliberately set up a webcam and tweeted it to his followers. But Clementi had turned off the computer so nothing happened. Sometime after, Clementi jumped of the George Washington bridge.
The incident has led to numerous anti-bullying and cyber-bullying laws and, this week, led to the conviction of Dharun Ravi on invasion of privacy and bias intimidation. He faced 5-10 years in prison and everyone is delighted.
Well, not everyone:
There was another boy in the room with Tyler Clementi that night. That other boy, so far as we know, hasn’t been publicly identified.
He also hasn’t committed suicide.
A mob mentality has set in. People—gay and straight, liberal and conservative—are calling for the heads of the two Rutgers students who cruelly and thoughtlessly invaded Tyler’s privacy. Facing charges that could bring them fives years in prison isn’t enough: people are calling for Dharun Ravi and Molly Wei to be charged with manslaughter, even murder. But the other boy didn’t commit suicide. So there had to be something else going on, some other contributing factors, that drove Tyler to such a point of despair and hopelessness that he took his own life. And this one incident of anti-gay bullying, however traumatizing it may have been (and Tyler’s emails and web posts immediately after indicate that he was upset, but not destroyed, by what his roommate had done), were not enough to do it. The other boy hasn’t committed suicide. This one event did not take a healthy, well-adjusted, well-loved gay kid and convince him to throw himself off the George Washington Bridge.
Surely, that must be some Right-Wing lunatic braying those insensitive things. That’s probably an op-ed by Rick Santorum, right? Nope. It’s from Dan Savage, who is exactly the opposite of Rick Santorum in every conceivable way.
Savage’s point is that Clementi must have had other problems, more likely a series of bullying incidents, and that this was the last straw that pushed him over the edge. But even that point may not be quite correct. Jacob Sullum points out that it’s not even clear that Clementi was getting any anti-gay-bullying from Ravi at all:
the prosecution never really substantiated its claim that Ravi deliberately sought to intimidate Clementi because he was gay. The most incriminating statement it introduced was Ravi’s joke that the webcam would “keep the gays away,” which might have reflected nothing more than his discomfort with the sexual activity going on in his room, a feeling that was compounded by the fact that Clementi’s visitor was an older man from off campus who struck Ravi as scruffy and taciturn. A naive 18-year-old’s uneasiness is such a situation is not the same as anti-gay hatred, and there is very little evidence that Ravi harbored antipathy toward homosexuals in general or Clementi in particular (leaving aside the point that such opinions should not be subject to criminal penalties). For all we know, Ravi was completely sincere when he said in a note of apology to Clementi (written after Clementi complained about the spying and asked for a room change) that he had nothing against gay people, a point that was confirmed by the prosecution’s own witnesses. Certainly there was reasonable doubt on that question.
So why did they convict? Above the Law explains:
So, the jury believed that Ravi did not invade Clementi’s privacy for the purpose of intimidating Clementi over his sexual orientation. But they thought that Ravi should have known that Clementi would feel intimidated, and that Clementi believed he was intimidated, and so Ravi is guilty and going to jail.
Is that how we want our hate crime laws to work? Any time we feel we’re being singled out because of our race, religion, or sexual orientation, we’re victims of a hate crime, even if we’re not being singled out because of our race, religion, or orientation? We’ve moved beyond punishing what is in a person’s heart, and moved straight to punishing an assailant for what’s in his victim’s heart.
Bingo. For years, conservatives have complained that hate crime laws create special classes of victims. I have not paid much attention to that argument because I worry about the larger issue: hate crime is thought crime. If someone beats me up because I’m Jewish, I’m no more hurt than if they beat me up to take my wallet. What we have criminalized is their motive. And only certain motives. If someone beats me because they hate that I’m an asshole and smell bad, they aren’t punished. It’s only a hate crime if it’s the yarmulke that offends them. A verdict like this should put fear into everyone. No longer is crime defined by objective evidence or the actions/intentions of the accused. It is defined by how the victim feels about it — or in this case, how we conjecture that they felt about it.
Back in college, the feminists attempt to define sexual harassment by the catch-phrase, “if you think you’ve been harassed, you’ve been harassed”. I objected that this left any factual analysis out of the equation; it let people define an offense any way they wanted to — in this case, an offense that could result in expulsion from school. It created an arbitrary state of law that could be used against anyone the authorities didn’t like.
We’re now seeing this mentality creep into law — if you think you’ve been the victim of a hate crime, or the prosecutor can persuade a jury you have been, then you’re a victim. Facts don’t matter; only feelings do. The prosecutors couldn’t really pin anything on Ravi but there was a hue and cry for his head. So they found a way to stretch an overly flexible law to accomodate that outcry. And if they can stretch it to put him in prison, they can stretch it to put anyone in prison.
(H/T: First Amendment bulldog Mark Randazza).