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An ongoing discussion about conservatism in New Jersey.
The Rutgers case highlights need for legal equality
Peter C. Hansen  (April 29, 2011, 1:21 am)

The Clementi case, in which a Rutgers student outed by webcam leapt to his death, has now resulted in an indictment against one of the two people originally named as co-conspirators. While Molly Wei has been let off for now, apparently because she will testify for the prosecution, Dharun Ravi has been charged on 15 counts, which in the words of the New York Times includes "acting with antigay motives." The hate-crime element bumps up Mr. Ravi's potential penalty from probation to a jail sentence of 5 to 10 years.

I yield to no one in my loathing of Mr. Ravi's actions. There was no excuse whatever for what he did. If Mr. Ravi felt threatened by having to share a room with someone who found members of his gender attractive, he could have asked for a room change, or simply made himself scarce. Had he been an open-minded university student in the classical sense, he could have engaged Mr. Clementi on a human level, and talked things out so that they reached a modus vivendi. What Mr. Ravi could not do under any moral calculus was publicly expose and humiliate Mr. Clementi. This was an attempt to harm and destroy him by surreptitious means. This was the act of a coward, and it deserves harsh punishment.

This being said, there is a problem with Mr. Ravi's potential sentencing. The law is simultaneously too weak and too strong. Mr. Ravi would normally get probation for what he did. This seems far too slight a punishment where the victim stands to be humiliated to the point of considering (or, in Mr. Clementi's case, actually committing) self-harm. A wider range of punishments, or simply a harsher baseline, should be adopted for invasions of privacy in order to provide an appropriate deterrent.

The prosecutor appears to have gotten around the law's weakness by adding "bias intimidation" charges that will radically raise the penalty against Mr. Ravi. This is problematical for several reasons. First off, it is hard to see how Mr. Ravi's act was "intimidation." Striking fear into Mr. Clementi does not seem to have been the point of the exercise. Mr. Ravi's cruelty indeed seems to have lacked any purposive object, such as blackmailing Mr. Clementi or forcing him to move out. Mr. Ravi appears to have simply wished to make sport of a person he despised. It is thus hard to see how Mr. Ravi's malice is of a different order or type than if he were to have filmed a disliked girl in flagrante, or a nerdy onanist down the hall. Mr. Ravi's act would have been an equally loathsome invasion of privacy in all three cases.

The indictment partly justified the "bias intimidation" charges on the finding that Mr. Clementi reasonably believed that he had been targeted because of his sexual orientation. It is no doubt distressing to realize that something about oneself has attracted wrongful attention. Since the same level of distress may be caused by different perceived reasons for targeting, however, there is no equitable basis for privileging some over others. For example, a woman may believe she was targeted for exposure because of her "good girl" behavior. In both her case and Mr. Clementi's case, the victim is made a target of wrongful exposure, and a public persona may be harmed by evidence of contrary acts or interests. Such exposure is always traumatic, whatever persona is assaulted, and by whatever acts. It is therefore difficult to credit one harmed person's feelings over another's as a matter of law, particularly when this distinction leads to additional felony charges. Both persons in fact deserve equal treatment and protection.

In giving more value to a homosexual's pain than to a heterosexual's, the "bias intimidation" laws affirm a harmful stereotype about gays, namely that they are weaker and more vulnerable to injury than heterosexuals. This can lead to ridiculous results. For example, an out-and-proud gay man may merely be infuriated by exposure of his activities, while a meek heterosexual man may be driven to suicide by exposure of his heterosexual acts. Yet, the offense against the gay man is deemed "intimidation" and punished more severely. This not only fails to provide equal justice, it patronizes and belittles the gay man. As for the quite valid concern that gays are vulnerable to targeting by homophobes, while heterosexuals need not fear, it must be observed that this concern goes to enforcement of the law, not the law to be enforced. Jerks who target gays should be tracked down, prosecuted, punished and deterred using the laws applicable to everyone. Deterrence here can be furthered by holding the police and prosecutors to account, and by educating the public (and thus juries) on the need to uphold individual dignity. Equal and effective protection under uniform laws will remove the impetus for drawing invidious legal distinctions between people, or for valuing the same hurt differently based on the victim's sexual preferences.

In addition to their other faults, New Jersey's "bias intimidation" laws are based on old and often false assumptions about homosexuality and homosexuals. Mr. Ravi's "bias intimidation" charges appear to presume that Mr. Clementi had to be unusually ashamed (and thus "intimidated") at having been revealed as gay. The evidence may eventually reveal what Mr. Clementi's views actually were. Moreover, it goes without saying that it is brutal and cruel to out a closeted person, as initially appears to have occurred in Mr. Clementi's case. Nevertheless, there is no equitable reason for the law to presume shame, or to provide enhanced felony charges as a way to assist image management for gays alone (as opposed to, say, deflowered "good girls"). Doing so not only violates equal treatment, but once again reinforces harmful stereotypes of homosexuals as uniquely weak, self-loathing and preferring the closet. NJ law seems to accept the hoary old "love that dare not speak its name" standard, which is hardly compatible with a post-Stonewall view of the world, and is in any event hardly applicable to out-and-proud folks, who are becoming increasingly common even among teenagers. Since anyone can potentially be hurt by disclosure of their sexual activities, often in uniquely personal and unpredictable ways, a uniformly harsh penalty should be applied to maximize deterrence. Such a penalty should be designed so as to clearly shield persons who fear abuse once outed, whether as a gay or as a "slut."

Finally, it must be noted that "bias intimidation" laws are not only ill-matched to the modern sexual spectrum, but may not even accurately depict victims. This can lead to enhanced penalties being doled out or withheld based on false, unprovable or arbitrary conclusions.

A couple hypotheticals quickly reveal that "bias intimidation" charges often focus on and draw assumptions from gay sex acts, regardless of the victim's actual "sexual orientation." First, let us assume that a victim is merely experimenting when filmed, and does not actually identify as gay. The victim, an intensely private person, then commits suicide because he doesn't want to face life with people thinking he is gay. He leaves no note. A subsequent "bias intimidation" charge assumes that the victim was gay because he was caught in a gay sex act. The victim's "gayness" now becomes a matter of public record, despite being false. Such is the power and particular shame of his act that the law assumes that no one would commit it unless their "sexual orientation" were gay.

Second, let us assume that the victim is a bisexual. He is filmed first with a female partner, and then with a male partner. The first episode gets the perpetrator put on probation. The second episode gets the perpetrator thrown into prison for five years. Again, it is the individual act that defines the crime, not the victim's bisexuality. The victim's "sexual orientation" becomes an issue only once he gets a partner of the same sex. As long as the bisexual behaves "normally," he doesn't get any particular protection. Now, if the bisexual were filmed with both his female and male partners simultaneously, one can only wonder how the law would deal with it. Presumably it would involve what exactly went on, which again brings the law back to its strange concentration on particular sex acts. If a uniform standard for privacy existed, no weird conundrums such as this would ever arise.

The above analysis and argument is directed not at weakening the protection of homosexuals, but at strengthening everybody's protection, so that no one feels they can invade the privacy of anyone, gay or straight. The Clementi case highlights just how badly NJ law needs modernizing and improvement. Using hate-crime laws as a patch is not an appropriate solution. "Bias intimidation" laws are strange, arbitrary and alien to the common law. They also by their very nature reinforce harmful stereotypes about homosexual behavior. They should therefore be abandoned, and the law should be changed to improve protections for everyone.

As for Mr. Ravi, he deserves a harsh penalty, but the NJ Legislature has failed to provide one. Since the "bias intimidation" charges raised against him are fatally flawed, they should be dropped as a matter of law. While this would likely let Mr. Ravi get away with a slap on the wrist, such an infuriating example of laxity could drive reform and lead to a strengthening of the privacy laws. This would be to everyone's benefit, and would hopefully save many people – whether gay, straight or other – from facing the torture that Mr. Clementi did at the hands of Mr. Ravi.