In New Jersey, a Just Verdict for a Hateful Crime

      In the movie American Pie, Jim Levenstein’s friends play a dirty trick on him by surreptitiously setting up a Web cam to live-stream for all to view Jim’s much anticipated first sexual experience. The prank becomes all the more embarrassing when Jim, teenage testosterone surging, reaches the peak of excitement with his boxers still on, barely past second base.
      The makers of the 1999 film played the episode for laughs, and funny it is. The four-minute clip of the scene has a continuing life on You Tube, with more than 68,000 views at last count.
      On the surface, Dharun Ravi played a similar prank on the nights of September 19 and 21, 2010, when the Rutgers University freshman set up a Web cam to watch his roommate Tyler Clementi in a sexual encounter. But Ravi now faces a possible prison sentence of up to 10 years after a state court jury in New Jersey convicted him on Friday (March 16) of 24 criminal counts, including violations of the state’s hate crime law.
      This story differs from the movie, of course, because Clementi, an 18-year-old gay boy, committed suicide the day after Ravi's second, unsuccessful spy-cam set-up by jumping into the Hudson River from the George Washington Bridge. Clementi’s suicide made national news, feeding into a national campaign by gay rights groups against the bullying, harassment and worse directed against so many gay, lesbian, bisexual and transgender individuals.
      Whatever Ravi’s moral responsibility might be, he could not be held legally responsible for Clementi’s death. But the 35-count indictment brought by prosecutors in New Brunswick charged him with invasion of privacy, bias intimidation and obstruction of justice.
      Like Clementi’s death, the prosecution made national headlines, but also attracted controversy from the outset and all the more so with the verdict. Within hours of the conviction, Jacob Sullum, senior editor of the libertarian magazine Reason, complained that Ravi had been convicted of “a hateless hate crime.” The verdict, dubious on the evidence in Sullum’s view, also compounded what he called “the injustice of imposing extra punishment for crimes motivated by bigotry.”
      Hate crime laws have drawn this criticism for decades even as they have been enacted and expanded by Congress and legislatures in virtually all the states. Libertarian and conservative critics view the laws as sops to political constituencies — women, racial and ethnic minorities and LGBT individuals — that not incidentally infringe on freedom of expression: in effect, thought crimes.
      The criticism has been rejected by, among others, the U.S. Supreme Court. In upholding Wisconsin’s hate-crime law, Chief Justice William H. Rehnquist spoke for a unanimous court in endorsing the rationale the state offered for the law (Wisconsin v. Mitchell, 1993). “Bias-motivated crimes,” he wrote, paraphrasing the state’s argument, “are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.”
      A decade later, Justice Clarence Thomas, the court’s most libertarian-minded member, similarly embraced that view in rejecting a First Amendment challenge to Virginia’s anti-cross burning law. “Cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence,” Thomas wrote in Virginia v. Black (2003). “Those who hate cannot terrorize and intimidate to make their point," he concluded.
      Ravi was charged under a New Jersey law that provides increased penalties for specified crimes if committed with “a purpose to intimidate an individual or group” on the basis of specific characteristics, including sexual orientation. The law also provides the same enhancement if the offender commits the crime knowing that it would result in bias-intimidation or “under circumstances” that in fact caused an individual to be intimidated because of a specified bias.
      The New Jersey jury seemingly worked through the statute and the evidence with some care. The panel found no intentional bias intimidation in Ravi’s initial spy-camming and acquitted him on all counts in relation to Clementi’s hook-up partner. But the jury found Clementi was intimidated after the first evening, based in part on Clementi’s obsessive checking of Ravi’s twitter account once he had learned of the spying. And the panel agreed that Ravi’s actions on the second night did constitute intentional violation of the law.
      Sullum criticizes the verdict in part by attacking the yet-unimposed sentence as too severe. Ravi rejected a plea bargain that called for no prison time, only 600 hours of community service. Character witnesses testified that Ravi is not anti-gay. But he was charged with and found guilty of anti-gay conduct. And his demeanor during the trial gave no indication that Ravi has yet to feel remorse for what he did.
      As with cross-burning, anti-gay bullying and harassment comes burdened with a history: the history of violence and intimidation against gay people. The intimidation is particularly hurtful for young people still working out their individual sexualities. That’s why Ravi’s offense was no sophomoric prank. By singling out Clementi as different — because of his sexuality — Ravi was rightly held responsible for making his roommate feel vulnerable to all the harm that anti-gay prejudice can bring about.
      Ravi’s sentencing is set for May 21; New Jersey law gives the judge some discretion in the length of the sentence. Defense lawyers say they have grounds to challenge the verdict; appellate rulings will come a good many months in the future. For now, though, Ravi’s conviction appears to be a just verdict for a hateful crime.