Nov 052010
 November 5, 2010  Posted by  Court, Youth & Schools

I was somewhat surprised that I hadn’t seen more media coverage here of a recent statement by the attorney for one of the two Rutgers students charged in Tyler Clementi’s suicide that the video had not been streamed or viewed by others.   After all, if they did not stream the video, that could knock out a big part of the New Jersey prosecutors’ case against them, right?

Suppose the two defendant students just watched, by web cam, but never transmitted what they saw?  There’d still be an invasion of privacy, but it would not have been compounded by the act that many believe was the proximal cause of Clementi’s decision to kill himself.  But even if they didn’t stream it but he believed that many others had seen the tape because of what one of the students posted, then how does that impact any criminal charges?

The implications of the defense attorney’s claims are horrifying, of course.  That a student might have killed himself because he believed something had happened that hadn’t would be a tragedy of immense proportions, but it will strike many as a different tragedy than the suicide over something that did happen.  But what are the implications for any criminal prosecution?

Geoff Mulvihill of The Associated Press reports on how the new defense claims, if true, might impact any criminal prosecution and the challenges the prosecution will face if it tries to prove certain charges.

Despite all of the understandable public sentiment in the wake of Clementi’s suicide,  the criminal case against the students may be weak if the prosecutors cannot demonstrate that the motivation was a hate crime or anti-gay, that actual genitalia or a sexual encounter was recorded, and that the students transmitted or attempted to transmit the video on the web to others.

Lawyers for the roommate and another student, accused of watching 18-year-old Tyler Clementi “making out with a dude” in his dorm room on the Piscataway campus, insist their clients were the only two people who saw a tame encounter and did not record it.

Prosecutors said, though, that they tried to transmit a “sexual encounter” on the Internet but haven’t said how widely available they believe the video was.

Therein lie the questions: What was the potential audience? What constitutes privacy? What did Clementi know, and why did he believe death was the best option? For the young suspects, the answers could mean the difference between years in prison, 18 months or no time at all.

There is a long way to go on this case, but it is an important case for all of us because even if it should turn out that there was no anti-gay hatred involved and the defendant would have done the same thing to a heterosexual roommate, a young man committed suicide over what started with an invasion of privacy. We must never lose sight of that.

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