The Freedom Bulletin

Yesterday, Dharun Ravi was sentenced to 30 days in prison for using a webcam to spy on his roommate at Rutgers University, Tyler Clementi, and inviting his friends to join him. The next day, Clementi committed suicide.

Ravi could have received up to 10 years in prison. In addition to the 30 days, he was sentenced to 3 years of probation, counseling about alternative lifestyles, and a $10,000 fine to be paid to a fund for victims of hate crimes.

Much has been made of the fact that Tyler was gay, and as a result, Ravi was convicted of hate crime charges in addition to the underlying crimes, which included invasion of privacy and evidence tampering.

In my opinion, Tyler’s orientation is not what makes this crime so bad; the way that Dharun treated him was cruel and wrong no matter what the sexual orientation, race, gender, or other demographic characteristics of the people involved. To ridicule someone to your friends, to spy on them when they want to be alone, and invite your friends to join in the spying, violates that person’s rights, and it is bullying.

For this reason, I think that this sentence is on the lenient side. Our society seems to be very reluctant to treat mental/emotional harm as seriously as physical harm. Crimes that involve psychological torment tend not to be punished as harshly as those involving physical injuries, even though, in reality, they can be just as damaging, if not more so. An example of this is the Phoebe Prince case, in which the students who bullied Phoebe to death reached plea deals and avoided jail time. Although Ravi’s actions may not have been the only cause, or even the main cause, of Clementi’s suicide, they certainly were a cause to some extent. And even if Clementi was still alive today, there is no question that he would have suffered significant emotional harm from Ravi’s actions. The legal system needs to treat psychological harm as seriously as physical harm, and by giving such a lenient sentence, the judge in this case did not achieve that.

5/22 update: Ian Parker at the New Yorker makes some interesting observations about the role that Ravi’s lack of remorse played in his sentence. I actually admire that Ravi stuck with his belief that his actions did not constitute a crime, instead of apologizing, flip-flopping, or trying to take back what he did. He even refused to take the government up on its offer of a plea deal with no jail time, saying, “I’m never going to regret not taking the plea. If I took the plea, I would have had to testify that I did what I did to intimidate Tyler, and that would be a lie.” Ravi may very well be telling the truth when he claims that he did not act out of anti-gay bias or to intimidate Tyler. But the legal system should not be as concerned with the motivations behind Ravi’s actions as it is with the actions themselves. No matter his motives, Ravi did the things that he did intentionally (it’s not as if his fingers slipped, causing him to accidentally tweet mean comments and turn his webcam on), and those actions violated Clementi’s privacy rights and caused him significant harm.

On Friday, a jury in New Jersey convicted Dharun Ravi of several counts of invasion of privacy, bias intimidation, and witness and evidence tampering for spying on his college roommate, Tyler Clementi. The case would be nowhere near as highly-publicized as it is, and likely would never have become a criminal case at all, if it weren’t for Clementi’s suicide shortly after the spying, in September 2010. Because Clementi was gay and Ravi had spied on him kissing another guy, his death became symbolic to many gay rights and anti-bullying advocates who demanded (rightly) that something be done to fight back against bullying and harassment. Was Ravi’s conviction – which could result in deportation and/or jail time – the right way to fight back? In some respects, yes; in other respects, no.

Ravi faced 13 main charges and was convicted on all of them. Two invasion of privacy charges were for using a webcam to spy on Clementi and his guest engaging in intimate contact without their consent, two more invasion of privacy charges were for making it possible for others to view the webcam feed, and four attempted invasion of privacy charges involved trying to do the same on a different occasion. Seven additional counts involved deleting tweets and text messages, lying to police, and trying to influence others in what they told police, in order to impede the investigation.

On top of all these charges, the invasion of privacy charges carried various counts of bias intimidation, alleging that either Ravi’s goal was to intimidate Clementi because of his sexual orientation, or that he knew Clementi would be intimidated because of his sexual orientation, or that Clementi ended up being intimidated and reasonably believed that he had been targeted because of his sexual orientation. The jury convicted Ravi of at least one of these bias intimidation counts for each invasion of privacy charge, for a total of 24 convictions on 35 total charges.

See a breakdown of all the charges here.

First of all, I agree with the prosecutor’s and the jury’s harsh response to Ravi’s actions to the extent that it is important to treat mental and emotional harm as seriously as physical harm. Legal systems tend to treat things as a violation of a person’s rights only if they physically hurt the person or cause them to lose property or money. But harassment, humiliation, exclusion, and insults can be every bit as harmful as theft, vandalism, or assault, and perpetrating them against innocent people is equally horrible. Bullying violates the rights of its victims, and the legal system should act accordingly.

In Ravi’s specific case, I think it is completely appropriate for him to be punished for watching Clementi (above) and his guest kissing without their permission, and especially for inviting others to do the same. The details of the case are not as clear cut as many initially believed (including myself when I first blogged about it). Ravi’s defense team suggested that he was worried about theft because Clementi’s male friend was a few years older and looked “creepy.” And as Ian Parker at the New Yorker pointed out, no video was actually posted on the Internet, and there was no sex shown on the webcam, just kissing. But the evidence showed that Ravi intended to watch, and invite others to watch, Clementi and his male friend hooking up. He texted about a “viewing party with a bottle of Bacardi and beer,” tweeted, ”anyone with iChat, I dare you to video chat me,” and made sure the camera was pointing at Clementi’s bed. Ravi’s actions were simply wrong. People have a right to live free from secret surveillance, especially in their own rooms.

The one thing that I disagree with about this verdict is that it treats the crimes against Clementi as especially bad because he was gay. The basic principle behind hate crimes, of which the bias intimidation charges are an example, is that it is especially wrong to commit crimes against a person if you are motivated by hatred of them based upon a certain group that they belong to, such as their religion, race, nationality, gender, or sexual orientation. First of all, the phrase “hate crime” is a bit of a misnomer because it equates “hate” with prejudice against a group. But it is certainly possible to hate a person for reasons other than their membership in a historically-disadvantaged group. And if directed at a person who does not deserve it, this is every bit as horrible as group prejudice. For example, I was bullied in middle school because I preferred to wear dresses and skirts instead of jeans, was shy and quiet, didn’t listen to “cool” music, didn’t use the latest slang, and was interested in “geeky” things like history and books. As far as I know, I was not the victim of any crimes currently on the books, but had I been, this would not meet the criteria for a hate crime, and so the perpetrators would not face an enhanced sentence. The fact that I was targeted because of who I am as an individual, as opposed to a group that I belong to, does not make the bullying any less hurtful, the motivations behind it any less heinous, or the bullies any less deserving of punishment.

The bottom line is that bullying innocent people and violating their privacy should be treated harshly by the legal system, no matter what the victim’s religion, race, nationality, gender, or sexual orientation.

This week the Supreme Court heard arguments in the case of Albert Florence. Horrifically, Mr. Florence was wrongly arrested due to a computer mistake for failing to pay a traffic fine, which he had actually paid, and was then thrown in jail and strip searched twice. The Court is deciding whether New Jersey’s practice of strip-searching all inmates who are held in jail before trial is constitutional.

Interestingly, the more “liberal” justices seemed more opposed to strip searches and the more “conservative” ones seemed to lean toward supporting them.

Justice Sotomayor said that much contraband enters jails ”not on intake, but…from corrupt correction officials” and reminded her fellow justices of a very important principle, asking, ”What are we doing with the presumption of innocence? That’s also a constitutional right.”

Justice Kagan contrasted this case with a 1979 decision approving body cavity searches after contact visits, saying, ”Here, you are talking about somebody who is arrested on the spot. There is no opportunity for planning, for conspiracy with respect to contraband.”

Justice Scalia claimed that strip searches were routine at the time the Bill of Rights was ratified. Although I don’t know for sure, that would be very surprising to me. He also implied that it would be okay to strip someone “to see if the person has any fleas or cooties or, you know, any other communicable disease before he is put into the general population.”

My view:

Although jail officials and people who support strip searches do not refer to them as a punishment and do not conduct them for that purpose, being subjected to such a degrading invasion of privacy is unarguably a punishment, and a severe one at that. It is always wrong to inflict punishments on people who have not been convicted of a crime, both from a common-sense point of view and according to the Fifth Amendment to the Constitution, which forbids that anyone ”be deprived of life, liberty, or property, without due process of law.” Heck, you could even argue the more radical position that strip searches, even of people who have been convicted of crimes, are unconstitutional because they are a “cruel and unusual” punishment under the Eighth Amendment.

Looking at the debate from a slightly different angle, using common sense about searches and seizures also makes it clear that strip searching people, when there is no reason to suspect they may be hiding weapons or contraband, is unconstitutional. If someone is arrested, then presumably there is reasonable suspicion that they committed some crime. But the strip search is not related to finding evidence of a crime, it is done for safety and security purposes. If the inmate has done nothing to raise suspicion of smuggling contraband, then there is no reasonable suspicion to conduct a strip search, and it therefore violates the Fourth Amendment. This is even more true when someone is arrested for a minor offense such as failing to pay a traffic ticket.

A lawyer from the Department of Justice told the Court, ”You cannot say that there are some minor offenders that don’t pose a contraband risk. You have individuals who are making (a) very quick determination. They have very little time, and if they guess wrong, those mistakes can be deadly.” But a strip search is a severe violation of a person’s dignity, privacy, and sexual integrity. The burden of justification must always be on those who want to inflict such a violation, and it is certainly not enough of a justification that there is some chance, however small, that the person might have contraband. If you don’t have enough time to figure out which inmates raise a reasonable suspicion, you shouldn’t be searching anyone.

In my opinion, this particular case is a no-brainer. Punishing people in this way, when they must be presumed innocent and have done nothing to raise suspicion, is unconstitutional, and I hope the Supreme Court recognizes this.

This is truly awful:

“In March 2005, Mr. Florence was in the passenger seat of his BMW when a state trooper pulled it over for speeding. His wife, April, was driving. His 4-year-old son, Shamar, was in the back.

The trooper ran a records search, and he found an outstanding warrant based on the supposedly unpaid fine. Mr. Florence showed the trooper the document, but he was arrested anyway.

A failure to pay a fine is not a crime. It is, rather, what New Jersey law calls a nonindictable offense. Mr. Florence was nonetheless held for eight days in two counties on a charge of civil contempt before matters were sorted out.

In the process, he was strip-searched twice.”

This guy, Albert Florence, was sexually assaulted for allegedly not paying a fine on a traffic violation, even though he actually paid it. How could the government of New Jersey think this is okay? Strip searches with no probable cause shouldn’t even be allowed for people convicted of the most serious crimes, let alone people merely accused of crimes, let alone people accused of something that isn’t even a crime.

Very sadly, several courts have upheld such degrading and suspicionless searches, starting with Bell v. Wolfish in 1979, although other courts have ruled that strip searches can only take place when the inmate is reasonably suspected of having weapons or contraband. I hope that the Supreme Court takes Mr. Florence’s case and stands up for human dignity by taking the latter view.

New Jersey governor Chris Christie is known for speaking his mind and following through on his promises. Although perhaps not the most eloquent or elegant, he has had some real results in his first year in office:

“When Christie took office, his state faced an $11 billion shortfall. His approach was to declare a state of emergency and start reducing state spending. No new taxes was his campaign promise, and he has lived up to that commitment. He has taken on the powerful state employee unions and is fighting against automatic teacher tenure.

He added to his popularity when he told the federal government to keep its billions and killed a $9 billion tunnel project under the Hudson River for commuter trains. The project was the most expensive transportation project in the country. Christie said his citizens couldn’t afford it, and he didn’t want them liable for potential billions in overruns. He said ‘Thanks but no thanks!’”

Read the rest at CNN.

Many people want Christie to run for president in 2012. He says that he’s focusing on his current job right now, which I think is probably a good decision, since he has three more years left in his term. Whenever he decides to run, if at all, he’s definitely someone I would consider supporting.

There are some stories that make me think, “Why on earth would someone do that?”

This is one of them:

“The New Jersey attorney general’s office is reviewing the case of a Rutgers University freshman who jumped from the George Washington Bridge last week after images of him having sex with another man were broadcast on the Internet, and will decide whether to prosecute the incident as a bias crime, a spokesman said Thursday.”

“A body pulled from the Hudson River was identified Thursday as that of Tyler Clementi, 18, of Ridgewood, N.J. His death was ruled a suicide. Clementi’s roommate, Dharun Ravi, and a friend of Ravi’s, Molly Wei, have each been charged with two counts of invasion of privacy for using a webcam to film and transmit footage of Clementi having sex in his dorm room.”

I cannot, for the life of me, comprehend why someone would decide to tape their roommate having sex and put it on the Internet.

I don’t necessarily agree with the idea that this (alleged) crime was homophobic or a hate crime. The accused students may not have been motivated by hatred for gay people, and even if they were, I don’t think that would be any worse than if they were just motivated by hatred for Tyler as an individual.

Taping someone having sex and putting it on the Internet is cruel, wrong, and violates their rights regardless of whether they are gay or straight. It’s a shame that the maximum penalty for this is five years in prison (10 if it is a hate crime), considering that people can get more than that for victimless crimes like gun possession and drug use. If they are indeed guilty, the two suspects’ actions directly caused the victim’s death, so I certainly don’t think it would be inappropriate to charge them with homicide.

Some of the comments that people have posted about this case (here for example) are horrific. While most commenters actually have brains and hearts, some have posted that being gay is vile and despicable, that Tyler committed suicide because he knew that what he did was wrong, that anyone who commits suicide must have something wrong with them, that Ravi was the real victim because he had a gay roommate, and that he had a constitutional right to secretly tape Tyler having sex and put it on the Internet.

Although it must be annoying when your roommate has sex in your room, Ravi and Wei seem to have done the taping not out of frustration but because they thought it would be funny to humiliate a fellow student. Ravi did not seem at all threatened, upset, or even inconvenienced, happily tweeting things like “”I saw him making out with a dude. Yay.” and “Anyone with iChat, I dare you to video chat me between the hours of 9:30 and 12. Yes it’s happening again.” Tyler did not commit suicide because he had “issues;” he committed suicide because two people decided to violate his rights and humiliate him, something that no one should have to deal with. As for the claim that Ravi had a right to do what he allegedly did, ask yourself this question: What is more important, the right to secretly tape people and put it on the Internet, or the right not to have people secretly tape you and put it on the Internet? I think the latter.

The bottom line is that the two suspects in this case, if guilty, are bullies. Tyler’s sexual orientation is irrelevant; the case would be just as tragic, and the alleged crime just as evil, had he been straight. Humiliating another person – whether gay, straight, bi, or asexual - is not funny, and in this case it cost a young man his life.

There’s hope for America!

Virginia, New Jersey elect Republican governors

Edit: And… Maine rejects same-sex marriage law