On Friday, the New Jersey jury convicted Dharun Ravi of bias intimidation in connection with the charge of invasion of privacy. Here is the New Jersey bias intimidation provision:
Bias Intimidation. A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of an offense specified in chapters 11 through 18 of Title 2C of the New Jersey Statutes; N.J.S.2C:33-4; N.J.S.2C:39-3; N.J.S.2C:39-4 or N.J.S.2C:39-5,
(1) with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, handicap, sexual orientation, or ethnicity; or
(2) knowing that the conduct constituting the offense would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, handicap, sexual orientation, or ethnicity; or
(3) under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, handicap, sexual orientation, or ethnicity, or (b) the victim or the victim’s property was selected to be the target of the offense because of the victim’s race, color, religion, gender, handicap, sexual orientation, or ethnicity.
Let me first make sense of the verdict and the important message it sends to the public. Then, I am going to talk about my concerns in the event that the sentence approaches (or comes close) to ten years.
The New Jersey bias law punishes the targeting of someone for intimidation — through the commission of a specified crime (privacy)– because of their protected status and the special harm to the targeted individual and society that results. What is that harm? Hate conveys and does something uniquely damaging. It demeans groups, treating them as lesser beings or inhuman “others” who do not possess equal worth.[i] It marks groups as inferior and “not worthy of equal citizenship.”[ii] It conveys the message that group members are objects whose autonomy can be freely snatched away because they have no shared humanity to consider.[iv] Hate diminishes group members’ standing in society. So, too, it incurs feelings of inferiority, shame, and humiliation.
The jury heard evidence to support the finding that bigotry drove Ravi’s decision to invade his roommate’s privacy and that his roommate Tyler Clementi was intimidated and reasonably believed Ravi invaded his privacy because he was gay. The testimony, tweets, and texts showed that Ravi set up his webcam to capture his gay roommate’s (Tyler Clementi) sexual encounter with a man and that he briefly watched the encounter with six friends. It revealed that two days later, Ravi dared his Twitter followers to watch a live streaming of his roommate’s sexual encounter with the same man because “Yes, it’s happening again.” With the help of two friends, Ravi ensured his webcam was working and trained on Clementi’s bed. In discussing his camera set up in a text to a high school friend, he wrote “Keep the gays away.” Before taking his own life, Clementi read Ravi’s tweets–over and over again, 38 times — and requested a room change from a resident assistant, describing his roommate’s behavior as “wildly inappropriate.”
There’s certainly evidence of bigotry. Ravi demeaned Clementi by exposing his sexuality to others. The live streaming, one accomplished and one foiled, amounted to a public shaming of Clementi for being gay. Clementi’s persistent checking of the tweets and his immediate action to change his room spoke to his feelings of humiliation.
The jury’s conviction for invasion of privacy and bias intimidation has a powerful and important expressive role to play. It says that society does not tolerate exposing someone’s sexuality to humiliate them. It conveys the message that we cannot treat LGBT individuals as “others” who, in Ravi’s words, should go away. It tells LGBT individuals that they do not have to tolerate such treatment, that they have every right to complain to law enforcement when something like this happens. And it says to law enforcement that they ought to pursue bias intimidation claims in cases such as these.
So what’s the problem? It’s important to recognize that the evidence wasn’t clear cut on the question of bias motive and intimidation. Clementi told a friend he did not care about what Ravi had done. Some evidence suggested that Ravi was not acted out of bigotry but instead that he was performing, showing off for friends. Reading this New Yorker piece demonstrates the complexity involved in their interactions. That has led many in the public to suggest that Ravi is guilty of being jerk and for invading Clementi’s privacy, but not for being a bigot. I’m worried that if the judge sentences Ravi to something close to ten years, that a backlash will follow. If people sense the verdict and sentence are unfair, we may hear for calls to revise hate crime laws and sentences to apply only to physical violence. And we may see prosecutors refuse to pursue cases of bigoted online harassment and/or privacy invasions where the evidence isn’t mixed, where the bigotry is both clear and deeply damaging. As it is, law enforcement routinely refuses to pursue bigoted online harassment on the grounds that victims can turn off their computers or that “boys will boys.” And those cases are not filled with lots of grays. The bigotry is clear and the damage overwhelming to victims. In short, I’m concerned that this is the wrong test case, one that may erect even higher barriers(and they are too high already) to punishing and deterring bigoted online harassment. My interview with Guy Roz of NPR’s All Things Considered spoke to these concerns, but I wanted to flesh them out further here.
[i] Deborah Hellman, When Is Discrimination Wrong? (Cambridge: Harvard University Press, 2008): 29.
[ii] Jeremy Waldron, “Dignity and Defamation: The Visibility of Hate,” 123 Harv. L. Rev. 1596, 1601 (2010).
[iii] Erving Goffman, Stigma: Notes on the Management of Spoiled Identity (New York: Simon & Schuster, 1963).
[iv] Martha Nussbaum, “Objectification and Internet Misogyny,” in The Offensive Internet (Cambridge: Harvard University Press 2010): 70.